SHABBIR MOHAMMAD SAYED versus MRS. NOOR JEHAN MUSHTER SHAIKH & ORS. on 2 August 2022

SHABBIR MOHAMMAD SAYED

v.

MRS. NOOR JEHAN MUSHTER SHAIKH & ORS.

(Civil Appeal Nos.5039-40 of 2022)

AUGUST 02, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Maharashtra Rent Control Tenancy Act, 1999 – s.26 –Contract Act, 1872 – Ratification – The first respondent filed a civilsuit against respondent Nos.2-4 (defendant no.1,2 and 3) claimingthat they (defendant nos.1 and 2) were tenants of a property inquestion who were ready to transfer their tenancy rights – AppellateCourt decreed the suit, plaintiff was declared tenant and defendantno.3(landlord) was directed to hand over possession of the suitpremises – The appellant’s case was that he had obtained theleasehold rights of the property in question from the lawful tenantby an agreement dated 24.01.2014 (Appellant claims ignorance ofthe aforesaid litigation by the first respondent) – The landlord-3[rd]defendant by the agreement of the same date i.e. 24.01.2014 assignedleasehold right in favour of the appellant – Appellant had filed anapplication under O. XXI r.97 of the CPC before the ExecutionCourt, which was rejected by the Execution Court, the AppellateCourt, and the High Court – On appeal, held: An assignment byappellant is illegal u/s. 26 of the Maharashtra Rent Control Act,unless a contract to the contrary is established – There is no expresscontract to the contrary to rescue appellant – While ordinarily atenant can assign or sublease his rights as a lessee, the MaharashtraRent Control Act prohibits subletting, giving on license or assigning,or transferring in any other manner – An assignment by the tenantcan be ratified by the landlord,however, there is no ratification inthe alleged agreement executed by the landlord-3[rd] defendant – Nocase for interference made out.

Dismissing the appeals, the Court

HELD:1. While under the general law, subject to there beingno contract to the contrary, a tenant can assign, sublease ormortgage his rights as lessee, on the other hand, in regard to atenancy governed by the Act, the ordinary rule is that a tenant

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Acannot sublet, give on licence or assign or transfer in any othermanner. This is made subject to a contract to the contrary. Theassignment relied upon by the appellant namely by alleged lesseeon 24.01.2014 would be illegal on the face of it unless a contractto the contrary is established. It is in this regard that the appellantwould draw support from the action of the admitted landlordBnamely, the defendant no.3 who has purported to enter into theassignment in favour of the appellant on the very same day. [Para12][130-G-H; 131-A-B]

2. The next aspect which is canvassed by the appellant isabout the inapplicability of Section 52 of the Transfer of PropertyCAct as an absolute bar or rather the effect of lis pendens asobtaining in Bombay. It is pointed out that Section 52 has amodified application in the area in which the premises in questionis situated. It is the case of the appellant that the premises indispute is located within the scope of the amended law. In view ofDthe same, it is contended that the bar of Section 52 will not apply.When questioned as to whether the appellant had a case that theplaintiff had not given a notice and got it registered under Section52, the answer is that the plaintiff does not have a case of havinggiven any notice. It is actually a question of fact whether thepremises is located in the area covered by the Amendment toESection 52. It is further a question of fact as to whether a noticewas given. [Para 13, 14][131-G-H; 133-C-D]

3. As regards the lease not being registered, the contentionof the appellant is premised on Section 55 of the Tenancy Act. Inother words, it is contended that Section 55(2) of the Act clearlyFplaces the responsibility of getting the lease registered on thelandlord. The failure of the landlord to get the lease registeredwould entitle the tenant to establish the tenancy with thedocument even if it is not registered. [Para 15][133-D-E]

4. As far as the alleged assignment by the so-called tenantGin favour of the appellant is concerned, it is prohibited undersection 26. There is no express contract to the contrary to rescuethe appellant. An assignment by the tenant can be ratified by thelandlord. In this case however there is no ratification in the H

alleged agreement executed by the 3[rd] defendant landlord. Hedoes not even refer to the alleged agreement executed by thetenant in favour of the appellant. Ratification is an act whichpresupposes knowledge of the act of the person whose act issought to be ratified. A perusal of the alleged agreement executedby the landlord would reveal that it makes no reference to thealleged agreement executed by the tenant in favour of theappellant. The third defendant had proceeded to allegedly executethe agreement purporting to create interest in his own right.Therefore, we are of the view that even proceeding on the basisof the principle laid down by the full bench of the High Court ofBombay, in the facts of this case, there is no ratification. Sans anyratification and in the absence of any contract to the contrarywithin the meaning of Section 26, the alleged transfer by the ‘lawfultenant’ cannot pass muster. [Paras 17 and 24][134-D; 135-H; 136-A-C]

5. As far as the case based on the alleged TenancyAgreement dated 24.01.2014 between the third respondent andthe appellant, we may notice certain features. As already noticed,agreement by the so-called tenant in favour of the appellant wasalso executed on the same day. In the Agreement executed bythe tenant on 24.01.2014, the tenant states that he is the lawfultenant and that he is staying in the said premises and the tenancyis created in consideration of Rs.9,40,000/- being paid. In Clause(3) of the Agreement, the tenant has purported to hand overvacant possession of the premises to the appellant. In fact, it isstated that the assignment will be “forever”. In the allegedtenancy agreement between the third respondent and theappellant executed allegedly on the same day it is recited thatthe premises is in the actual physical possession of the landlordand on a consideration of Rs.175/- per month, tenancy was createdin his favour. The case of the appellant which is based essentiallyon the appellant having paid Rs.9,40,000/- to the ‘lawful’ tenanthaving found to be untenable being illegal as violative of Section26 of the Act is in direct conflict with the case set up by theappellant regarding the tenancy with the third respondent. Wehave already found that the case of the landlord having ratifiedthe tenancy of the appellant with the tenant cannot stand scrutinyof the Court. The acceptance of the case by the appellant involves AB

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Aharmonizing of an irreconcilable contradiction as regards theprincipal recital, namely, the case as to the emanation ofpossession. If the case of the appellant is accepted it is the tenantwho was in possession and who handed it over having received asum of Rs.9,40,000/- which is essentially the case set up in theExecution Court. Noticing no doubt, that the documents haveBnot yet been proved and taking the documents on their face value,yet the conclusion is inevitable that the case set up by theappellant on the basis that the landlord was in possession is inthe teeth of agreement of the same day with the tenant who claims

that he was in possession and it does not appeal to us as anythingCbut incongruous to say the least. In fact, in his application, beforethe Execution Court the specific case set up by the appellant isthat he was put in possession by the alleged lawful monthly tenant.The case set up by the appellant based on the tenancy agreementby the landlord cannot be acted upon. [Para 25][136-C-H; 137- A-B]DCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5039-5040 of 2022.

From the Judgment and Order dated 17.07.2018 of the High Courtof Judicature at Bombay in Civil Revision Application No. 372 of 2017Eand Order dated 16.08.2018 in Civil Application No. 495 of 2018 in CivilRevision Application No. 372 of 2017.

Gauraj Shah, Udayaditya Banerjee, Advs. for the Appellant.Sandeep Sudhakar Deshmukh, Adv. for the Respondents.

FThe Judgment of the Court was delivered byK. M. JOSEPH, J.

1. Leave granted.

2. By the impugned order, the High Court in a revision petitionfiled by the appellant has upheld the order passed by the Appellate BenchGof the Court of Small Causes at Bombay which in turn affirmed theorder passed in Execution Application No.386/2016 that is Order dated16.11.2016, rejecting the application filed by the appellant under OrderXXI Rule 97 of the Code of Civil Procedure. The application for recallhas been rejected by the order which is also impugned. The firstHrespondent filed a civil suit against respondent Nos.2-4. Respondent Nos.2-4 are, in other words, defendants 1, 2 and 3 in the suit. The claimof the first respondent in the suit was that defendant Nos. 1 and 2 weretenants of the property in question who were ready to transfer theirtenancy rights on the agreed consideration of Rs. 85,000/- which waspaid to them by the first respondent. The parties are referred to by theirstatus in the Trial Court. The matter was being delayed on the basis ofthe property being illegally sublet to two persons. The plaintiff is allegedto have contacted the landlord namely defendant No.3. The 3[rd] defendanttransferred tenancy rights by rent receipt dated 01.12.2006. Possessionwas not handed over. PW2, the 3[rd] defendant, was examined where headmitted the letters dated 03.1.2004 and 19.05.2007. The Trial Courtdismissed the suit by Judgment dated 09.04.2013. The plaintiff appealedthe judgment by filing Appeal No.23 of 2013. The Appellate Court decreedthe suit. Following are the terms of the decree:

1. Appeal is allowed with costs.

2. The Judgment and decree dated 09.04.2013 is set aside andfollowing order is substituted.

i) The suit is party decreed with costs.

ii) It is declared that the plaintiff is tenant in respect of the suitpremises being Room No.3, Ground Floor, 98/A, VisheshwarBhuvan @ Rajkotwala Compound, Pipe Road, Kurla (West),Mumbai 400 070.

iii) Defendant No.3/landlord/co-owner is directed to hand overpossession of the suit premises to the plaintiff within a month anddirected to issue rent receipt regularly to the plaintiff after acceptingthe monthly rent.

iv) The relief sought vide prayer clause (b) is rejected.

3. The plaintiff levied execution by filing Execution ApplicationNo. 386 of 2016.

4. It is the case of the appellant that the tenant who was actuallyin possession of the property assigned his rights in favour of the appellantby an agreement dated 24[th] January 2014. The appellant claims ignoranceof the litigation.

5. In other words, one Akhtar Habibullah Shaikh claiming to bethe lawful tenant of the premises transferred his rights in favour of the A

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Aappellant upon receiving of ‘total cost and consideration’ of Rs.9,40,000.What is more important is the 3[rd] defendant (landlord) by agreement ofthe same date i.e. 24[th] January 2014 assigned leasehold right in favourof the appellant. The appellant came by possession of the premises.When he came to know of the decree obtained by the plaintiff and itbeing put to execution, he filed application purporting to be under OrderB21 Rule 97 of the Code of Civil Procedure. It was this application whichwas dismissed by the Execution Court, the Appellate Court and the HighCourt.

6. We heard Shri Gauraj Shah along with Mr. Udayaditya Banerjee,learned counsel on behalf of the appellant and Shri Sandeep SudhakarCDeshmukh, learned counsel on behalf of the plaintiff.

7. Learned counsel for the appellant would contend that none ofthe grounds arrayed against the appellant will hold good in law. It ispointed out that the appellant has been non-suited on the followinggrounds.D

8. The assignment of lease in favour of the appellant by the personclaiming to be the lessee was unlawful, the lease being contrary to Section26 of the Maharashtra Rent Control Tenancy Act 1999 (hereinafterreferred as “the Act”). Secondly, it has been found that the assignmentpurporting to be made by the 3[rd] defendant landlord in favour of theEappellant could not be acted upon as the assignment was not registered.It was thirdly found that the transactions relied on by the appellant wereafflicted by the bar of Section 52 of the Transfer of Property Act. It wasduring the pendency of the appeal filed by the plaintiff which appeal waslater allowed that the assignments relied on by the appellant came to bemade. Learned counsel would elaborate and contend as follows:F

As far as Section 26 of the Act is concerned, the prohibitiontherein would not apply if there is a contract to the contrary. Hewould rely upon the Judgment of a full bench of the Bombay HighCourt and contend that in the light of the law laid down therein theGbar of Section 26 would not apply. The next contention is that inMaharashtra, Section 52 has been amended. The substance ofthe amendment is that if the party wishes to avail the benefit ofthe doctrine of lis pendens, he must give a notice which must beregistered in the manner provided. The plaintiff has no case thatsuch a notice was given and registered. This would mean that H

Section 52 would not apply. Still further even Order 21 Rule 102of the Code of Civil Procedure has been omitted in the State ofBombay. Therefore, the assignment in favour of the appellant willnot be afflicted with the Bar under Section 52 or Order 21 Rule102, runs the argument.

As far as the 3[rd] finding against the appellant goes, namely, thefact that the lease deeds were not registered, it is pointed out thatthe lease deeds were actually monthly in nature. At any rate evenif lease extends for a period of more than one year, the appellantstands shielded by virtue of the provisions of Section 55 of theAct. He would contend that though a review petition was filedbringing to the notice of the High Court, the aspects relating toSection 26 and the provisions of Section 55, the High Court hasdismissed the review petition as well. He would point out thatwhen a person who is not a party to the suit or in the executionproceeding is in possession and has independent rights and is soughtto be dispossessed, under the law as laid down by this Court, he isentitled to have his right investigated and adjudicated in the mannerprovided in Order 21 Rules 98 and 101. He would point out thatactually the decree obtained by the plaintiff is collusive in nature.The 3[rd] defendant came to be examined by the plaintiff as herwitness namely PW2. The same 3[rd] defendant came to executethe agreement on 24[th] January 2014 in favour of the appellant.

9. Per contra learned counsel for the plaintiff supported theimpugned Judgment. He would point out that there is no bona fides inthe claim of the appellant. According to the plaintiff, appellant has neitherany right nor even possession of the property.

10. We have already noticed the facts. Originally the Trial Courtdismissed the suit filed by the plaintiff. It is after she filed the appeal andduring the pendency of the appeal that the two transactions relied uponby the appellant allegedly came to be entered into. The transactions aresaid to be entered into on 24.01.2014.

11. We must first consider whether the said transactions dated24.01.2014 said to have been entered into by the tenant Shri Habibullahis hit by the bar of Section 26 of the Act. This we do, proceeding on thebasis that it is proved.

Section 26 of the Act reads as follows:

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“26: In absence of contract tenant not to sub-let or transfer or togive on licence A

Notwithstanding anything contained in any law for the time beingin force, but subject to any contract to the contrary, it shall not belawful for any tenant to sub-let or give on licence the whole orany part of the premises let to him or to assign or transfer in anyother manner his interest therein:

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Provided that, the State Government may by notification in theOfficial Gazette, permit in any area the transfer of interest inpremises held under such leases or class of leases any premisesor class of premises other than those let for business, trade orstorage to such extent as may be specified in the notification.”

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Section 26 begins with a non-obstante clause and purports toprovide for the position despite whatever is contained in any lawfor the time being in force. In this regard, it must be noticed thatDthe Transfer of Property Act, 1882, in Section 108 (B)(j) providesthat in the absence of a contract to the contrary:

“(j) The lessee may transfer absolutely or by way of mortgage orsub-lease the whole or any part of his interest in the property,and any transferee of such interest or part may again transfer it.The lessee shall not, by reason only of such transfer, cease to besubject to any of the liabilities attaching to the lease; E

Nothing in this clause shall be deemed to authorise a tenant havingan untransferable right of occupancy, the farmer of an estate inrespect of which default has been made in paying revenue, or thelessee of an estate under the management of a Court of Wards,to assign his interest as such tenant, farmer or lessee;”

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12. Thus, the law giver has provided that, notwithstanding, theaforesaid provision it will not be lawful for a tenant to sublet or to give onlicense the whole or any part of the premises let to him or to assign ortransfer in any other manner his interest therein. This in turn is, however,made subject to any contract to the contrary. In other words, while underthe general law, subject to there being no contract to the contrary, atenant can assign, sublease or mortgage his rights as lessee, on the otherhand, in regard to a tenancy governed by the Act, the ordinary rule isthat a tenant cannot sublet, give on licence or assign or transfer in any G

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other manner. This is made subject to a contract to the contrary. Theassignment relied upon by the appellant namely by alleged lessee on24.01.2014 would be illegal on the face of it unless a contract to thecontrary is established. It is in this regard that learned counsel for theappellant would draw support from the action of the admitted landlordnamely, the defendant no.3 who has purported to enter into the assignmentin favour of the appellant on the very same day. In this regard, ourattention is drawn to the Judgment of the full bench of the Bombay HighCourt. Therein speaking on behalf of a Full Bench in 2004 (2) MaharashtraLaw Journal 305 R.M. Lodha,J as His lordship then was, inter alia, dealingwith Section 26 held as follows:

“15. The said section 26 does not absolutely prohibit or totallyforbid the tenant the tenant as meant by section 7(15) - to subletor give on licence or assign or transfer in any other manner wholeor any part of the premises let to him since it is subject to thecontract to the contrary with the landlord. In other words, thelandlord is always at liberty to permit the tenant to sublet or giveon licence or assign or transfer in any other manner whole or anypart of the premises let to him. The contract contrary to theprohibition provided in section 26 can be at any time at the timethe premises are let out to the tenant or any time thereafter, evenafter the tenant has sublet or given on licence or assigned ortransferred his interest in the premises let out to him. The landlordcan always ratify the action of the tenant in subletting or giving onlicence or assigning or transferring in any other manner his interestin the premises let to him. Thus, section 26 of the Act of 1999cannot be held to contain the absolute bar against the tenant ofthe non-residential premises nor the transfer in contravention ofsection 26 is absolutely void that is void against the whole worldbut may be void against the landlord furnishing him the ground toget a decree for ejectment.”

13. The next aspect which is canvassed by the appellant is aboutthe inapplicability of Section 52 of the Transfer of Property Act as anabsolute bar or rather the effect of lis pendens as obtaining in Bombay.It is pointed out that Section 52 has a modified application in the area inwhich the premises in question is situated. In regard to this area byvirtue of Bombay Amendment Act, 1939 (Act XIV of 1939), beingenacted, Section 52 reads as follows:

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A“52. (1) During the pendency in any court having authority withinthe limits of India excluding the State of Jammu and Kashmirestablished beyond such limits by the Central Government, of anysuit or proceeding which is not collusive and in which any right toimmovable property is directly and specifically in question, if anotice of the pendency of such suit or proceeding is registeredBunder Section 18 of the Indian Registration Act, 1908, the propertyafter the notice is so registered cannot be transferred or otherwisedealt with by any party to the suit or proceeding so as to affectthe rights of any other party thereto under any decree or orderwhich may be made therein, except under the authority of theCcourt and on such terms as it may impose.

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(2) Every notice of pendency of a suit or proceeding referred toin sub-section (1) shall contain the following particular, namely: - (a) the name and address of the owner of immovable property orother person whose right to the immovable property is in question; D

(b) the description of the immovable property the right to which isin question;

(c) the Court in which the suit or proceeding is pending; (d) the nature and title of the suit or proceeding; and E

(e) the date on which the suit or proceeding was instituted.

Explanation.—For the purposes of this section, the pendency of asuit or proceeding shall be deemed to commence from the date ofthe presentation of the plaint or the institution of the proceedingsin a Court of competent jurisdiction, and to continue until the suitFor proceeding has been disposed of by a final decree or order andcompete satisfaction or discharge of such decree or order hasbeen obtained, or has become unobtainable by reason of theexpiration of any period of limitation prescribed for the executionthereof by any law for the time being in force.”

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Adverting to the said provision, a division bench of the High Courtof Bombay has held as follows interalia in the Judgment reported in(2016) Vol.6 Bombay CR 262:

“58. Section 2 of the Bombay Amendment Act XIV of 1939provides that the Amendment Act shall apply to properties situated H

wholly or partly in the City of Bombay (now Mumbai)from thedate of notification in the official gazette (which has been issued)and provides for similar notification extending applicability of theAmending Act to other areas to be issued (which is not shown tohave been issued). Thus, the amended provisions apply toproperties in Mumbai and the unamended section applies to restof the State.”

(Emphasis supplied)

14. It is the case of the appellant that the premises in dispute islocated within the scope of the amended law. In view of the same, it iscontended that the bar of Section 52 will not apply. When questioned asto whether the appellant had a case that the plaintiff had not given anotice and got it registered under Section 52, the answer is that theplaintiff does not have a case of having given any notice. It is actually aquestion of fact whether the premises is located in the area covered bythe Amendment to Section 52. It is further a question of fact as to whethera notice was given.

15. As regards the lease not being registered, the contention ofthe appellant is premised on Section 55 of the Tenancy Act. In otherwords, it is contended that Section 55(2) of the Act clearly places theresponsibility of getting the lease registered on the landlord. The failureof the landlord to get the lease registered would entitle the tenant toestablish the tenancy with the document even if it is not registered. Section55 of the Act reads as follows:

“55. Tenancy agreement to be compulsorily registered.

(1) Notwithstanding anything contained in this Act or any otherlaw for the time being in force, any agreement for leave and licenseor letting of any premises, entered into between the landlord andthe tenant or the licensee, as the case may, after thecommencement of this Act, shall be in writing and shall beregistered under the Registration Act, 1908.

(2) The responsibility of getting such agreement registered shallbe on the landlord and in the absence of the written registeredagreement, the contention of the tenant about the terms andconditions subject to which a premises have been given to him bythe landlord on leave and license or have been let to him, shallprevail, unless proved otherwise.

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134SUPREME COURT REPORTS

A(3) Any landlord who contravenes the provisions of this sectionshall, on conviction, be punished with imprisonment which mayextend to three - - months or with fine not exceeding rupees fivethousand or with both.”

16. The appellant has not raised any contention based on theBamended Section 52 before the Execution Court. Even in the appealbefore the Appellate Court, the appellant has not contended that a Noticewas required under Section 52, as applicable. Before the High Court inthe Revision, it is not seen expressly contended. It is in the recall applicationthat an effort is made in this direction. The amended provisions of Section52 of the Transfer of Property Act are inapplicable for the whole ofCMaharashtra, as found by the High Court itself in the decision reliedupon by the appellant, it is applicable to certain area. The applicability ofthe amended provisions of Section 52, thus, became a question of fact.

17. As far as the alleged assignment by the so-called tenant infavour of the appellant is concerned, it is prohibited under Section 26.DThere is no express contract to the contrary to rescue the appellant. Thefull bench of the High Court of Bombay in the decision relied upon bythe appellant was actually dealing with the question whether the interestof the tenant could be attached and sold. No doubt, it has also held thatthere could be ratification by the landlord even after the transfer by theEtenant.

18. In the Indian Contract Act, 1872, Chapter X deals with Agency.In Chapter X, Sections 196 to 200 provide for ratification. Apparently,the Sections embody general principles relating to ratification and wecan safely apply the principles embodied in the Sections essentially dealingFwith relationship between a Principal and his Agent.

19. As to what is ratification, has been articulated in Section 196.It reads as under:

“196. Right of person as to acts done for him without his authority Effect of ratification. - Where acts are done by one person onGbehalf of another, but without his knowledge or authority, he mayelect to ratify or to disown such acts. If he ratifies them, the sameeffects will follow as if they had been performed by his authority.”

20. In the work “The Indian Contract Act and Specific ReliefActs” by Pollock and Mulla (14[th] Edition), the learned authors haveHstated thus:

“Ratification

An act which, at the time it was entered into or done by an agent,lacked the authority, express or implied, of a principal, may, by thesubsequent conduct of the principal, become ratified by him undercertain circumstances, and made as effectively his own as if hehad previously authorised it. Ratification can be express or impliedfrom conduct, and it will be held adopted throughout.

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Ratification differs from consent. Consent is an express or impliedagreement to waive the right to avoid an act, and precedes thetransaction. Ratification is subsequent in point of time to thetransaction which is voidable.Where acquiescence is made whenthe act to be ratified is in progress, it is consent; where it is doneafter the act is completed, it is ratification.”

(Emphasis supplied)

21. We may notice Section 198 of the Contract Act. It reads asunder:

“198. Knowledge requisite for valid ratification “No valid ratification can be made by a person whose knowledgeof the facts of the case is materially defective.”

22. Pollock and Mulla, in their work “The Indian Contract Actand Specific Relief Acts” have further stated thus:

“Effective ratification necessarily involves knowledge of all thematerial facts on the part of him who ratifies: i.e. the personratifying should be conscious that the act beyond the authority ofthe agent had been done, and after notice of that fact, he consciously,by an overt act, agreed to be bound by it or by acquiescence inthe situation arising thereafter, allowed the business to continue.

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23. Therefore, the core principle of ratification is one by which aperson approves of the act of another knowing about the act.

24. Thus, an assignment by the tenant can be ratified by thelandlord. In this case however there is no ratification in the allegedagreement executed by the 3[rd] defendant landlord. He does not even A

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Arefer to the alleged agreement executed by the tenant in favour of theappellant. Ratification is an act which presupposes knowledge of the actof the person whose act is sought to be ratified. A perusal of the allegedagreement executed by the landlord would reveal that it makes noreference to the alleged agreement executed by the tenant in favour ofthe appellant. The third defendant had proceeded to allegedly executeBthe agreement purporting to create interest in his own right. Therefore,we are of the view that even proceeding on the basis of the principle laiddown by the full bench of the High Court of Bombay, in the facts of thiscase, there is no ratification. Sans any ratification and in the absence ofany contract to the contrary within the meaning of Section 26, the allegedCtransfer by the ‘lawful tenant’ cannot pass muster.

25. As far as the case based on the alleged Tenancy Agreementdated 24.01.2014 between the third respondent and the appellant, wemay notice certain features. As already noticed, agreement by the so-called tenant in favour of the appellant was also executed on the sameDday. In the Agreement executed by the tenant on 24.01.2014, the tenantstates that he is the lawful tenant and that he is staying in the said premisesand the tenancy is created in consideration of Rs.9,40,000/- being paid.In Clause (3) of the Agreement, the tenant has purported to hand overvacant possession of the premises to the appellant. In fact, it is statedthat the assignment will be “forever”. In the alleged tenancy agreementEbetween the third respondent and the appellant executed allegedly onthe same day it is recited that the premises is in the actual physicalpossession of the landlord and on a consideration of Rs.175/- per month,tenancy was created in his favour. The case of the appellant which isbased essentially on the appellant having paid Rs.9,40,000/- to the ‘lawful’Ftenant having found to be untenable being illegal as violative of Section26 of the Act is in direct conflict with the case set up by the appellantregarding the tenancy with the third respondent. We have already foundthat the case of the landlord having ratified the tenancy of the appellantwith the tenant cannot stand scrutiny of the Court. The acceptance of the case by the appellant involves harmonizing of an irreconcilableGcontradiction as regards the principal recital, namely, the case as to theemanation of possession. If the case of the appellant is accepted it is thetenant who was in possession and who handed it over having received asum of Rs.9,40,000/- which is essentially the case set up in the ExecutionCourt. Noticing no doubt, that the documents have not yet been provedHand taking the documents on their face value, yet the conclusion is inevitable that the case set up by the appellant on the basis that thelandlord was in possession is in the teeth of agreement of the same daywith the tenant who claims that he was in possession and it does notappeal to us as anything but incongruous to say the least. In fact, in hisapplication, before the Execution Court the specific case set up by theappellant is that he was put in possession by the alleged lawful monthlytenant. The case set up by the appellant based on the tenancy agreementby the landlord cannot be acted upon.

26. The matter can be looked at from a different perspective aswell. The appellant lays store by a tenancy or assignment by the ‘lawfultenant’ on 24.01.2014. This involves the assumption that the tenancy infavour of the lawful tenant was intact. If so, how can the landlord createa tenancy in favour of the appellant without extinguishing the existingtenancy with the ‘lawful tenant’? The case of the appellant defies bothlogic and is legally untenable. It becomes unnecessary to even explorethe argument of the appellant that the suit being collusive, the courtsquery as to the impact of the transfer in favour of the appellant beinglater in point of time must stand overwhelmed would stand answered.

27. We would therefore think that the appellant has not made outa case for interfering with the impugned judgment. The appeals aredismissed. No order as to costs.

Ankit Gyan

Appeals dismissed.

(Assisted by : Aarsh Choudhary, LCRA)

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