RAMESHCHANDRA DAULAL SONI & ANR. versus DEVICHAND HIRALAL GANDHI (DEAD) THR. LRS. SMT. GULABBAI DEVICHAND GANDHI & ORS. on 14 November 2019

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SUPREME COURT REPORTS

[2019] 17 S.C.R.

ARAMESHCHANDRA DAULAL SONI & ANR.

v.

DEVICHAND HIRALAL GANDHI (DEAD) THR. LRS.SMT. GULABBAI DEVICHAND GANDHI & ORS.

(Civil Appeal No. 9834 of 2016)

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NOVEMBER 14, 2019

[R. BANUMATHI, A. S. BOPANNA ANDHRISHIKESH ROY, JJ.]

Bombay Rents, Hotels & Lodging Houses Rates Control Act,C1947 – s.5(11) – Eviction – Plaintiff purchased a property – Ason the date of purchase the predecessor of defendants No.1 and2 was the tenant of the said property – Defendants No.1 and 2thereafter continued as the tenants – The plaintiff informed thedefendants No.1 and 2 through the communication datedD06.12.1986 about the purchase and had sought for payment of therents – Defendants failed to pay the same – The plaintiff termedthe defendants No.1 and 2 as defaulters and instituted a regularcivil suit seeking eviction – Trial Court decreed the suit and directedthe defendants to handover actual physical possession of the suitproperty – Aggrieved, defendants No.1 and 2 filed appeal and theEsame was dismissed by the Appellate Court – The RevisionApplications were also dismissed by the High Court – DefendantsNo.1 and 2 contended that in view of the death of the originaltenant, two sisters who were also the legal heirs but were not madedefendants – It was also contended by all the legal heirs that theFsuit property was an agricultural property and such rights inter-sebetween the parties were governed under the Maharashtra Tenancyand Agricultural Lands Act (MTAL Act) and the Civil Court didnot have the jurisdiction – On appeal, held: The evidence availableon record was assessed by the Trial Court as also the AppellateCourt and have recorded a finding of facts – That such a findingGwas based on the oral evidence tendered and the documents thatwere relied upon and marked before the Trial Court, the findingof fact recorded cannot be considered as perverse so as to interferein a proceeding of the present nature – So far as two sisters ofdefendants No.1 and 2 are concerned, their claim to be consideredHas the tenants under the statutory tenant is a belated claim as an after thought – Defendant No.1 in his evidence stated that he usedthe premises for storing food grain etc., there was no reference tothe business being carried on jointly with his sisters – Further, thesaid sisters did not take any steps in any of the earlier proceedingsfrom 1989 to 2015 to get themselves impleaded by contending thatthey were proper and necessary party – Insofar, contention to theeffect that the suit property was an agricultural property, the saidcontention was never raised in the suit or as to whether the issuein the suit should be referred to the Authority under the MTAL Act– Further, there is no document to indicate the procedurecontemplated under the MTAL Act was followed so as to concludethat the predecessor of defendants No.1 and 2 had become landlordof the property by operation of law so as to bar the jurisdictionof the Civil Court – Therefore, contentions urged by the defendantsNo.1 and 2 as also by all the legal heirs unsustainable.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1. The provision in Section 5(11)(c)(ii) of BombayRents, Hotels & Lodging houses Rates Control Act, 1947 notedsupra is clear that the persons carrying on the business with thestatutory tenant at the time of death would be entitled to continueas a tenant. The second part of the said provision is that in theabsence of such member any heir of the deceased tenant as maybe decided by the Court in default of agreement, would get theright. In the instant case the contention being urged that thetwo daughters of the deceased tenants were also entitled to beconsidered as the tenants under the statutory tenant, is a belatedclaim as an afterthought. As taken note while considering thefactual aspect it has come on record that the plaintiff after havingpurchased the property under a registered sale deed had issuedthe notice dated 16.12.1986 as at Exhibit 80 and the trial courthas also recorded a finding that through the said notice theplaintiff had informed the defendants No. 1 and 2 about thepurchase of the suit property. That apart, subsequently a noticeas at Exhibit 96 was issued to the defendants No. 1 and 2demanding the arrears of rent. The said notice in fact had beenreplied by the defendants No. 1 and 2 through the reply markedat Exhibit 99. Neither at the first instance when the notice atExhibit 80 was issued was it indicated by the defendants No. 1and 2 that their sisters had also become the statutory tenants AB

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Aand the notice in the nature of attornment of tenancy should beissued to them as well, nor in the reply which had been issuedwhen the arrears of rent was demanded did the defendants No.1 and 2 contend that they were not the only one who wereinvolved in the business along with the original statutory tenantand, therefore, all the legal heirs had succeeded as tenants onBthe death of the statutory tenant and, therefore, the demand, ifany, is to be made from all of them. [Para 12] [58-B-G]

2. Though such contention is put forth the defendants No.1and 2 did not attribute any right in favour of the sisters. In fact,as noted by the trial court the defendants No. 1 and 2 have filedCon record pursis with a Exhibit 137-A claiming to have depositedRs. 1000/- on 09.9.2007 at ‘C’ Register No. 465 without prejudiceto their rights towards the rent, causes of the suit etc. This inopinion of this Court would indicate that the defendants No. 1and 2 were claiming right for themselves and did not at that stageDstate about the right if any, possessed by their sisters as welland have now raised the contention as an afterthought. Furtherin the evidence of defendant No. 1 he states that his grandfathertook the suit premises on lease for the purpose of business ofcotton ginning factory and he further states that the defendant ENo. 1 used the premises to store food grain and equipment ofagricultural and also cement. This would indicate that thedefendant was referring to the business being carried on by himalone and there is no reference to the business being jointlycarried on with his sisters or that none of the legalrepresentatives including defendant No. 1 were carrying onFbusiness with the statutory tenant so as to claim benefit of thesecond part of Section 5 (11) (c) (ii) and claim joint inheritanceof tenancy. Further the said position is also clear from theevidence of the one defendant witness ‘V’ who was examinedto indicate that the premises was being used for the businessGand in that regard, in the course of his evidence he has statedthat the defendants No. 1 and 2 are keeping cement and foodgrain in the godown and that he is serving with the defendants1 and 2 since last 10 to 12 years but has not stated about thesisters also being involved in the business. If that be theHposition even from the evidence of the said witness, it would

be clear that only first part of Section 5 (11) (c) (ii) would beavailable and the sisters of defendant No. 1 and 2 cannot claimright merely due to the fact that they are the legal heirs of thedeceased tenant. That apart the suit had been filed in the year1989 and the same had crossed the stage of appeal as well asrevision before the High Court which had come to an end on20.07.2015. In none of these proceedings the said sisters ofdefendants No.1 and 2 have taken any steps to get themselvesimpleaded by contending that they are proper and necessaryparties failing which their right would be affected. [Paras 13 and14] [58-G-H; 59-A-F]

3. Further, having taken note of the contention ofdefendant No. 5 what is noticed at the outset is that thepredecessor of the appellants, namely, the defendant No.5 didnot choose to file the written statement in the suit. In thatcircumstance the contention to the effect that the suit scheduleproperty or a portion thereof was an agricultural property wasnever the contention raised in the suit or as to whether the issuein the suit should be referred to the Authority under the MTALAct. In that view no issue in that regard arose before the trialcourt to consider as to whether the Civil Court had thejurisdiction to entertain the suit. That apart the undisputed factis that the legal representatives of defendant No.5 had assailedthe judgment of the court below in CRA No.114/2012 which wasconsidered along with CRA No.112/2012 and claiming to beaggrieved by the dismissal of the CRA No.114/2012 hadpreferred SLP(C) No.31644/2015 before this Court. This Courtthrough the order dated 23.11.2015 had dismissed the SpecialLeave Petition. Despite failing in the very proceeding relatingto which the execution petition has been initiated the said legalrepresentatives of defendant No.5 filed the application inexecution proceedings claiming to be agricultural tenants anddefeat the execution by terming the decree as a nullity. It is inthe said proceedings the executing court having taken intoconsideration all aspects, dismissed the application by the orderdated 15.10.2018. The executing court thus having taken intoconsideration the order dated 20.07.2015 passed by the HighCourt in CRA Nos.112, 113 and 114 of 2012 has dismissed the AB

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Aapplication. Further the right as claimed by the said legalrepresentatives based on the entry contained in 7/12 extract hasbeen rejected. There is no error committed by the executingcourt for the following reasons. [Para 16] [61-H; 62-A-E]

4. In view of this Court even assuming for a moment thatBthe name of the predecessor was indicated in the 7/12 extract,the basis of such entry is not demonstrated to be made after theprocedure being followed. Though the reference contained in thelease deed dated 22.05.1928 has been relied upon that the hutof the agricultural tenant is situate in the leased land, there isno reference made to the name of such tenant so as to indicateCthat the reference is to their predecessor i.e. defendant No.5nor can the co-existence of the agricultural operations beingcarried out in the land which was leased for storage of goods beassumed without definite material or demarcation indicated from records. The reference is only to the existence of a hut. ThatDapart even if the same is taken as a reference to the defendantNo.5 in the year 1928 the tenancy being continued and beingoperational on the tiller’s day i.e. 01.04.1957 is to be establishedto claim right under MTAL Act. Further while the MTAL Actcreates right in favour of the agricultural tenant as on the

Eappointed day the further procedure as contemplated is alsorequired to be followed under Section 32G of the said Act. Inthe instant case apart from the fact that no such contention wasurged in the suit by filing a written statement, no document toindicate that the procedure contemplated under the MTAL Acthas been followed is available so as to conclude that theFdefendant No.5 had become the landlord of the property byoperation of law so as to bar the jurisdiction of the Civil Court.[Para 17] [62-F-H; 63-A-B]

Damadi Lal & Ors. v. Parash Ram & Ors. (1976) 4SCC 855 : [1976] Suppl. SCR 645 ; Gian Devi AnandGv. Jeevan Kumar & Ors. (1985) 2 SCC 683 : [1985] 1Suppl. SCR 1 ; Uttam v. Saubagh Singh & Ors. (2016)4 SCC 68 : [2016] 2 SCR 100 - referred to.

Amrit Bhikaji Kale and Ors. S. Kashinath JanardhanTrade & Anr. (1983) 3 SCC 437 : [1983] 3 SCR 237H– held inapplicable.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9834of 2016.

From the Judgment and Order dated 20.07.2015 of the HighCourt of Judicature at Bombay, Bench at Aurangabad in Civil RevisionApplication No. 112 of 2012.

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Civil Appeal No. 8450 of 2019.

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Siddharth Bhatnagar, Siddhartha Dave, Sr. Advs., Aditya Sidhra,Nirnimesh Dube, Dilip Annasaheb Taur, Ms. Jemtiben AO, Ms. SaumyaGupta, Siddhant Krishna Dave, Advs. for the Appellants.

Uday B. Dube, Adv. for the Respondents.

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The Judgment of the Court was delivered by

A. S. BOPANNA, J.

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1. Though different orders, dated 20.07.2015 passed in CRANo.112/2012 and dated 15.10.2018 passed in CRA No.157/2018 areassailed in these two appeals, issues for consideration however ariseout of the common lis between the parties based on the judgment passedin the Regular Civil Suit No.253/1989 to which the appellants in C.A.No.9834/2016 were defendants No.1 and 2 while the predecessor ofGappellants in C.A. No.8450/2019 was defendant No.5. Hence both theseappeals were taken together for hearing and are being disposed by thiscommon judgment. For the sake of convenience and clarity the partieswould be referred in the same rank assigned to them in the suit. Sincethe claim of the appellants in C.A. No.8450/2019 is in the capacity ofH

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Alegal representatives of the deceased original defendant No.5, the caseput forth by them will be considered by referring to them as defendantNo.5.

2. The brief facts noticed for the purpose of disposal of theseappeals is as hereunder. The property bearing S.No. 9/1/A measuringB22 guntas situate at Chahurana Bk., Taluka Nagar, Ahmednagar Districtpresently bearing Plot No.19 within Ahmednagar Municipal Limits,measuring 2656 sq mtrs (hereinafter referred to as the ‘suit property’)which earlier belonged to Deshmukh Brothers was purchased by theplaintiff under a Sale Deed dated 08.08.1986. The plaintiff thereafterCsecured the Revenue entries to be recorded in his name. As on thedate of purchase the predecessor of defendants No.1 and 2 was thetenant in respect of the suit property paying the rent of Rs.31/- perannum. The defendants No.1 and 2 thereafter continued as the tenants.The plaintiff informed the defendants No. 1 and 2 through thecommunication dated 06.12.1986 about the purchase and had soughtDfor payment of the rents. The defendants No. 1 and 2 failed to pay thesame and since according to the plaintiff the defendants were also notusing the premises for the purpose for which it was let out, the plaintifftermed the defendants No. 1 and 2 as defaulters and instituted theRegular Civil Suit No.253/1989 seeking eviction of the defendants No.E1 and 2 as also the defendants No.3 to 7 whom the plaintiff describedas the sub-tenants in the premises.

3. The defendants in the suit were issued with the suit summons.The defendants No. 1 and 2 appeared and filed their respective writtenstatement. The defendants No. 3 and 5 did not choose to file the writtenFstatement while the defendants No. 4, 6 and 7 did not appear beforethe Trial Court and were therefore, proceeded ex-parte. The defendantsNo. 1 and 2 opposed the claim made in the plaint on merits, apart fromcontending that the suit was barred by limitation. The fact that theirpredecessor had taken the premises under lease deed dated 22.05.1928Gfor a period of 31 years on the annual rent of Rs.31/- was admittedand that the lease deed expired by efflux of time on 22.05.1959 wasalso stated. The said defendants however contended that they werenot informed about the purchase by the plaintiff. The Trial Court basedon the rival pleadings had framed as many as eleven issues. The partiesHin order to discharge their burden cast under the issues had tendered evidence. The Trial Court by its judgment dated 13.10.1998 decreedthe suit and directed the defendants No.1 to 7 to handover actualphysical possession of the suit property and also to pay the amount ofRs.162/-. Further, enquiry regarding mesne profits was also ordered.The defendants No.1 and 2 claiming to be aggrieved by the saidjudgment preferred an appeal before the Principal District Judge,Ahmednagar in Regular Civil Appeal No.315/1998. The AppellateCourt having adverted to the rival contentions has dismissed the appealthrough the judgment dated 18.02.2012. The cross objections filed bythe plaintiff and the defendants No.2 to 6 was also dismissed. Thedefendants No.1 and 2 claiming to be aggrieved by the said judgmentwere before the High Court of Judicature at Bombay, Bench atAurangabad in CRA No.112/2012. The High Court having taken noteof the rival contentions has by a detailed order dismissed the revisionapplication. The analogous Civil Revision Applications filed by theremaining defendants in CRA No.113/2012 and 114/2012 were alsodisposed of by the same common judgment dated 20.07.2015. It is inthat background, the defendants No.1 and 2 claiming to be aggrievedby the concurrent judgments are before this Court in this appeal. Theconnected appeal in C.A. No. 8450/2019 is against the order dated15.10.2018 arising out of execution proceedings in regular darkhast No.15 of 2016.

4. We have heard Mr. Siddharth Bhatnagar, learned senioradvocate for the appellants in C.A. No.9834/2016 (defendants No.1and 2), Mr. Siddhartha Dave, learned senior advocate for the appellantsin C.A. No.8450/2019 (legal representatives of defendant No.5)Mr. Uday B. Dube, learned counsel for the respondent (plaintiffs inthe suit) and perused the appeal papers.

5. As noticed, the suit in question was filed by the plaintiffsseeking eviction of the defendants No.1 and 2 who were the tenantsand also the remaining defendants who were described as the sub-tenants. Before adverting to the nature of contentions put forth by therespective learned senior advocates for the defendants which isemphasised on the very maintainability of the suit, it is necessary to, atthe outset, take note of the nature of consideration made by the TrialCourt which has been upheld by the Lower Appellate Court and theHigh Court respectively. The nature of the contentions put forth by ABC

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Athe parties is adverted to above. On the rival pleadings to that effect the Trial Court framed the following issues which read as hereunder:

ISSUES

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6. In the background of the issues framed, the plaintiff No.1examined himself as PW-1 and the Trial Court has taken note of hisdeposition as at Exhibit 78. The manner in which the plaintiff hadacquired right to the property has been stated and the Sale Deed wasalso marked in evidence as Exhibit 77/4. The fact of purchase wasGinformed to the defendants No.1 and 2 through the notice dated16.12.1986 which was marked as Exhibit 80. The said notice wasessentially in the nature to attorn the tenancy whereupon the defendantsNo.1 and 2 were required to recognise the plaintiff as the landlord andpay the rent accordingly. The fact that the defendants No.1 and 2 werecontinuing as the tenants in respect of the suit schedule property underH

the lease deed dated 16.07.1928 was also brought in evidence bymarking the same as Exhibit 100 whereunder the predecessor of thevendors of the plaintiff had leased the property to the predecessor ofthe defendants No.1 and 2. The fact that the lease was for 31 yearswas established and the Trial Court in that regard had also taken intoconsideration that the lease had come to an end by efflux of time ascontemplated under Section 111 of the Transfer of Property Act. Inthat circumstance, the defendants No.1 and 2 were considered to bethe statutory tenants under the Bombay Rents, Hotel & Lodging HousesRates Control Act, 1947 (‘Rent Act’ for short). Thus, having determinedthe relationship of landlord and tenant between the plaintiff and thedefendant No.1 and 2 the Trial Court proceeded to consider the otheraspects of the matter. In that regard the provision as contained inSection 5(11) of the Rent Act was taken note.

7. Insofar as the defendants No.3 to 7 though the plaintiffs hadcontended that they are the sub-tenants under the defendants No.1 and2, in the absence of there being plausible evidence relating to subletting,the Trial Court rejected the contention and held them to be the trespassersliable to be evicted and, in such event, directed all the defendants tovacate. Insofar as the ground on which the eviction was sought, namely,the defendants No.1 and 2 had failed to pay the rent and, therefore,they were defaulters and also that the property was not being put touse for the purpose which it had been rented out, the trial courtconsidered these aspects while answering issue Nos.2 to 4. In thatregard the notice issued by the plaintiff at Exhibit 96 and the postalreceipts at Exhibits 97 and 98 was taken into consideration wherebythe plaintiff had demanded for payment of the rents. In that backgroundthe reply issued by the defendants No.1 and 2 at Exhibit 99 was takennote and the Court was of the view that the defendants No.1 and 2did not indicate their readiness and willingness to pay the arrears ofrent. Further the evidence tendered by defendant No.1 at Exhibit 106was taken note wherein he had stated that the rent had not been paidfrom the year 1959 as nobody had demanded the rent from him. Whiletaking note of the same the trial court has taken into consideration thatthe said statements of defendant No.1 cannot be accepted inasmuchas the plaintiff in fact had issued the notice on 01.09.1988 wherebythe demand had been made. In that background the default in paymentof rent was accepted and held against the defendants No.1 and 2.

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A8. Insofar as the non-user of the premises for the purpose whichit had been rented out, the evidence to the effect that the premises wasgiven for the purpose of storage of goods namely cotton was takeninto consideration. The fact that there was a shed and the same notbeing put to use for the last several years as it was in a dilapidatedcondition was also taken note. Though a report of the CommissionerBas at Exhibit 10 was available on record the same was not taken intoconsideration and relied upon for technical reasons. Be that as it may,the trial court has also taken into consideration the deposition of thedefendant No.1 that he has been practising as an advocate in the HighCourt of Bombay and that at the point when the premises was takenCon lease the grandfather of defendant No.1 was doing business ofcotton ginning factory and he was also doing business in foodgrain. Hehad admitted that the business of cotton ginning factory is closed dueto ban imposed by Maharashtra Cotton Act and the premises is notused for storage of cotton but was being used for storing agriculturalequipments and cement. In that view, the trial court had also held thatDthe premises was not being used for the purpose it had been leasedand accordingly the grounds on which the eviction petition had beenfiled was upheld.

9. On the contention relating to the defendants Nos.3 to 5 thesame was considered while answering issue No.5 and as indicated aboveEthough they were not accepted to be the sub-tenants as claimed bythe plaintiff, the trial court has held that they are trespassers and notentitled to continue in the premises. The lower appellate court had takennote of the evidence, reappreciated the same and in that backgroundhad upheld the judgment passed by the trial court.

F10. On the factual aspects of the matter though Mr. SiddharthBhatnagar, learned senior advocate sought to assail the concurrentjudgements, we notice that the evidence available on record has beenassessed by the trial court as also the appellate court and have recordeda finding of fact with regard to the relationship between the partiesand also the ground on which the eviction had been sought. In thatGcircumstance when we notice that such finding is with reference tothe oral evidence tendered and the documents that were relied uponand marked before the trial court, the finding of fact recorded cannotbe considered as perverse so as to interfere in a proceeding of thepresent nature. The learned senior advocate would, however, contendHthat the suit schedule property admittedly was leased to the predecessor of defendants No.1 and 2 and in view of the death of the original tenantthe defendants No.1 and 2 have been arrayed as parties. It is contendedthat the defendants No.1 and 2 had two sisters who were also the legalheirs of the original tenant but not made defendants. In that regard itwas contended that in a circumstance where the predecessor was astatutory tenant, on the death of such statutory tenant the tenancy isinheritable by all the legal heirs and all of them were proper andnecessary parties. To contend so the learned senior advocate hasreferred to the provision contained in Section 5(11)(c)(ii) which readsas hereunder:

“In this Act unless there is anything repugnant to the subject orcontext.

(11) “rent” means any person by whom or on whose accountrent is payable for any premises and include,

(c) (ii) in relation to any premises let for the purposes of education,business, trade or storage, when the tenant dies, whether thedeath has occurred before or after the commencement of thesaid Act, any member of the tenant’s family using the premisesfor the purposes of education of carrying on business, trade orstorage in the premises, with the tenant at the time of his death,or, in the absence of such member, any heir of the deceasedtenant, as may be decided in default of agreement by the Court.”

11. The learned senior advocate in that regard, to contend thatall the legal representatives of the statutory tenant would be entitled tocontinue as tenants and that the High Court has committed an error inholding that they are not the tenants in common, has referred to thedecisions in the case of Damadi Lal & Ors. vs. Parash Ram & Ors.1976(4) SCC 855 wherein inter alia it is held that the statutory tenancyunder the Rent Act is heritable. To the same effect the decision in thecase of Gian Devi Anand vs. Jeevan Kumar & Ors. 1985 (2) SCC683 is relied upon. Further, the decision in the case of Uttam vs.Saubagh Singh & Ors. 2016 (4) SCC 68 is relied upon to contendthat when a male Hindu dies after commencement of Hindu SuccessionAct 1956, and in view of the second exception engrafted on proposition(i) is contained in the proviso to Section 6, which states that if such amale Hindu had died living behind a female relative specified in class 1of the schedule such female relative surviving him would have interestin the coparcenary property to contend that the statutory tenancy being AB

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Aheritable with rights attached to it, the sisters of defendants No. 1 and2 are also entitled to such right.

12. Having taken note of the contentions put forth, to the extentof the position of law as enunciated in the decisions cited supra therecan be no quarrel whatsoever. However, what is necessary to be takenBnote is the fact situation in the instant case to arrive at a conclusion.The provision in Section 5(11)(c)(ii) noted supra is clear that the personscarrying on the business with the statutory tenant at the time of deathwould be entitled to continue as a tenant. The second part of the saidprovision is that in the absence of such member any heir of thedeceased tenant as may be decided by the Court in default ofCagreement, would get the right. In the instant case the contention beingurged that the two daughters of the deceased tenants were also entitledto be considered as the tenants under the statutory tenant, is a belatedclaim as an afterthought. As taken note while considering the factualaspect it has come on record that the plaintiff after having purchasedDthe property under a registered sale deed had issued the notice dated16.12.1986 as at Exhibit 80 and the trial court has also recorded afinding that through the said notice the plaintiff had informed thedefendants No. 1 and 2 about the purchase of the suit property. Thatapart, subsequently a notice as at Exhibit 96 was issued to thedefendants No. 1 and 2 demanding the arrears of rent. The said noticeEin fact had been replied by the defendants No. 1 and 2 through thereply marked at Exhibit 99. Neither at the first instance when the noticeat Exhibit 80 was issued was it indicated by the defendants No. 1 and2 that their sisters had also become the statutory tenants and the noticein the nature of attornment of tenancy should be issued to them as well,Fnor in the reply which had been issued when the arrears of rent wasdemanded did the defendants No. 1 and 2 contend that they were notthe only one who were involved in the business along with the originalstatutory tenant and, therefore, all the legal heirs had succeeded astenants on the death of the statutory tenant and, therefore, the demand,if any, is to be made from all of them.G

13. Though such contention is put forth the defendants No.1 and2 did not attribute any right in favour of the sisters. In fact, as notedby the trial court the defendants No. 1 and 2 have filed on record pursiswith a Exhibit 137-A claiming to have deposited Rs. 1000/- on 09.9.2007at ‘C’ Register No. 465 without prejudice to their rights towards theHrent, causes of the suit etc. This in our opinion would indicate that the defendants No. 1 and 2 were claiming right for themselves and did notat that stage state about the right if any, possessed by their sisters aswell and have now raised the contention as an afterthought. Furtherin the evidence of defendant No. 1 he states that his grandfather tookthe suit premises on lease for the purpose of business of cotton ginningfactory and he further states that the defendant No. 1 used the premisesto store food grain and equipment of agricultural and also cement. Thiswould indicate that the defendant was referring to the business beingcarried on by him alone and there is no reference to the business beingjointly carried on with his sisters or that none of the legal representativesincluding defendant No. 1 were carrying on business with the statutorytenant so as to claim benefit of the second part of Section 5 (11) (c)(ii) and claim joint inheritance of tenancy. Further the said position isalso clear from the evidence of the defendant witness Shri VanajiDhoodiram Dani who was examined to indicate that the premises wasbeing used for the business and in that regard, in the course of hisevidence he has stated that the defendants No. 1 and 2 are keepingcement and food grain in the godown and that he is serving with thedefendants 1 and 2 since last 10 to 12 years but has not stated aboutthe sisters also being involved in the business. If that be the positioneven from the evidence of the said witness, it would be clear that onlyfirst part of Section 5 (11) (c) (ii) would be available and the sisters ofdefendant No. 1 and 2 cannot claim right merely due to the fact thatthey are the legal heirs of the deceased tenant.

14. That apart the suit had been filed in the year 1989 and thesame had crossed the stage of appeal as well as revision before theHigh Court which had come to an end on 20.07.2015. In none of theseproceedings the said sisters of defendants No.1 and 2 have taken anysteps to get themselves impleaded by contending that they are properand necessary parties failing which their right would be affected. Atthis stage it is necessary to take note that the learned counsel for theparties have brought to the notice of this Court that the said two sistershave filed a Civil Suit bearing No.516/2015 for declaration of their rightwhich is pending before the Civil Court. The very sequence noticedabove would indicate that the said sisters had not put forth their claimearlier and the present suit appears to be a ploy to put a spoke in thewheel on realising that the contention as put forth by defendants No.1and 2 did not yield the desired result inasmuch as the Civil RevisionApplication came to be dismissed in the year 2015. Hence, neither the AB

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Aprovision of the Rent Act or the decisions relied upon supra will be ofassistance to the defendants No. 1 and 2. In that circumstance thecontention as put forth by the learned senior advocate for the defendantsNo.1 and 2 is liable to be rejected, which we accordingly do.

15. Mr. Siddhartha Dave, learned senior advocate for the legalBrepresentatives of defendant No.5 would contend that defendant No.5was an agricultural tenant in respect of the suit schedule property andas such the rights inter-se between the parties is governed under theMaharashtra Tenancy and Agricultural Lands Act (‘MTAL Act’ forshort). He contends that under the said Act there is a bar contemplatedunder Section 85 of the Act against the Civil Court entertaining anyCquestion which is required to be settled, decided or dealt with by theMamlatdar or Tribunal, Manager, the Collector or the MaharashtraRevenue Tribunal. In that view, it is contended that the suit scheduleproperty being an agricultural property, the Civil Court did not have thejurisdiction. The learned senior advocate has referred to a documentDat Annexure P-1, namely, 7/12 extract to indicate that the name of thedefendant No.5 is depicted as tenant in respect of a portion of the suitschedule property. It is his further contention that in the lease deeddated 22.05.1928 (Annexure P-2) executed by the predecessor of theplaintiff in favour of the predecessor of the defendants No.1 and 2, inClause 6 thereof it makes a reference to the existence of a hut of theEagricultural tenant in the land and that it should be kept as it is and thatthe lessee will not obstruct them. In that view, it is contended that thesaid document would establish that the land in question is an agriculturalland and the Civil Court ought not to have entertained the suit. Thelearned senior advocate in that regard has referred to the decision inFthe case of Amrit Bhikaji Kale and Ors. Vs. Kashinath JanardhanTrade & Anr, (1983) 3 SCC 437 wherein it is held as hereunder:

“6. The Tenancy Act was comprehensively amended byAmending Act 15 of 1957. The amendment brought in arevolutionary measure of agrarian reforms making tiller of theGsoil the owner of the land. This was done to achieve the objectof removing all intermediaries between tillers of the soil and theState. Section 32 provides that by mere operation of law, everytenant of agricultural land situated in the area to which the Actapplies shall become by the operation of law, the owner thereof.He is declared to be a deemed purchaser without anything moreHon his part. A Constitution Bench of this court in Sri Ram Ram Narain Medhiv. State of Bombay [1959 Supp 1 SCR 489, 518-19 : AIR 1959 SC 459 : 1959 SCJ 679] held that:

“The title of the landlord to the land passes immediately tothe tenant on the tillers’ day and there is a completed purchaseor sale thereof as between the landlord and the tenant. Thetitle of the land which was vested originally in the landlordpasses to the tenant on the tillers’ day and this title is defeasibleonly in the event of the tenant failing to appear or making astatement that he is not willing to purchase the land or commitdefault in payment of the price thereto as determined by theTribunal.”

Therefore, it is unquestionably established that on the tillers’ day,the landlord’s interest in the land gets extinguished andsimultaneously by a statutory sale without anything more by theparties, the extinguished title of the landlord is kindled or createdin the tenant. That very moment landlord-tenant relationship asunderstood in common law or Transfer of Property Act comesto an end. The link and chain is broken. The absentnon-cultivating landlord ceases to have that ownership elementof the land and the cultivating tenant, the tiller of the soil becomesthe owner thereof. This is unquestionable. The landlord from thedate of statutory sale is only entitled to receive the purchase priceas determined by the Tribunal under Section 32-G. In other words,the landlord ceases to be landlord and the tenant becomes theowner of the land and comes in direct contact with the State.Without any act of transfer inter vivos the title of the landlord isextinguished and is created simultaneously in the tenant makingthe tenant the deemed purchaser. It is an admitted position thaton April 1, 1957 Tarachand was the landlord and Janardhan wasthe tenant. Tarachand landlord was under no disability as envisgedby Section 32-F. Therefore on April 1, 1957 Janardhan becamedeemed purchaser and Mr Lalit could not controvert thisposition.”

16. The position of law and decision cited cannot be applied inabstract. Therefore, the fact situation is to be noticed. Hence havingtaken note of the above contention what is noticed at the outset is thatthe predecessor of the appellants, namely, the defendant No.5 did notchoose to file the written statement in the suit. In that circumstance A

B

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Athe contention to the effect that the suit schedule property or a portionthereof was an agricultural property was never the contention raisedin the suit or as to whether the issue in the suit should be referred tothe Authority under the MTAL Act. In that view no issue in that regardarose before the trial court to consider as to whether the Civil Courthad the jurisdiction to entertain the suit. That apart the undisputed factBis that the legal representatives of defendant No.5 had assailed thejudgment of the court below in CRA No.114/2012 which was consideredalong with CRA No.112/2012 and claiming to be aggrieved by thedismissal of the CRA No.114/2012 had preferred SLP(C) No.31644/2015 before this Court. This Court through the order dated 23.11.2015Chad dismissed the Special Leave Petition. Despite failing in the veryproceeding relating to which the execution petition has been initiatedthe said legal representatives of defendant No.5 filed the application inexecution proceedings claiming to be agricultural tenants and defeat theexecution by terming the decree as a nullity. It is in the said proceedingsthe executing court having taken into consideration all aspects, dismissedDthe application by the order dated 15.10.2018. The executing court thushaving taken into consideration the order dated 20.07.2015 passed bythe High Court in CRA Nos.112, 113 and 114 of 2012 has dismissedthe application. Further the right as claimed by the said legalrepresentatives based on the entry contained in 7/12 extract has beenErejected. We find no error committed by the executing court for thefollowing reasons.

17. In our view even assuming for a moment that the name ofthe predecessor was indicated in the 7/12 extract, the basis of suchentry is not demonstrated to be made after the procedure beingFfollowed. Though the learned senior advocate has relied on the referencecontained in the lease deed dated 22.05.1928 that the hut of theagricultural tenant is situate in the leased land, there is no referencemade to the name of such tenant so as to indicate that the reference isto their predecessor i.e. defendant No.5 nor can the co-existence ofthe agricultural operations being carried out in the land which was leasedGfor storage of goods be assumed without definite material or demarcationindicated from records. The reference is only to the existence of a hut.That apart even if the same is taken as a reference to the defendantNo.5 in the year 1928 the tenancy being continued and being operationalon the tiller’s day i.e. 01.04.1957 is to be established to claim right underMTAL Act. Further while the MTAL Act creates right in favour ofHthe agricultural tenant as on the appointed day the further procedure as contemplated is also required to be followed under Section 32G ofthe said Act. In the instant case apart from the fact that no suchcontention was urged in the suit by filing a written statement, nodocument to indicate that the procedure contemplated under the MTALAct has been followed is available so as to conclude that the defendantNo.5 had become the landlord of the property by operation of law soas to bar the jurisdiction of the Civil Court.

18. In that view, the decision referred to supra by learned senioradvocate would not be of assistance in the present case since the saiddecision only indicates the legal position and was applicable in the saidcase since in that case it was an admitted position that as on 01.04.1957Tara Chand was the landlord and Janardan was the tenant. On the otherhand, in the present facts as already noticed no such contention wastaken at the first instance nor has it been conclusively established thatthe defendant No.5 was an agricultural tenant more so in thecircumstance where the suit schedule property did not continue to existas an agricultural property but was within Ahmednagar Municipal Limitswhich was a Town Planning Scheme as on the date of the suit. Thoughwe are not oblivious to the fact that certain agricultural properties wouldsubsequently get included in the Town Planning Scheme, in the instantfacts if the claim of the defendant No.5 is to be taken note, not onlythe reliance on 7/12 extract but a subsequent inclusion of the name inthe Municipal records based on any right that was crystalized in favourof defendant No. 5 based on the MTAL Act was also necessary to beestablished. In the absence of the same the contention put forth by thelearned senior advocate cannot be accepted.

19. In the above circumstance, when the contentions as urgedby the learned senior advocate for defendants No.1 and 2 as also thedefendant No.5 are unsustainable and in that background when we havenoticed that all three Courts have concurrently appreciated the materialavailable on record and have recorded a finding of fact to order evictionof the defendants, we see no reason to interfere either with the judgmentdated 20.07.2015 passed in CRA No.112/2012 or the judgment dated15.10.2018 in CRA No.157/2018.

20. Both the appeals accordingly stand dismissed with no orderas to costs. Pending applications if any are also disposed of.

Appeals dismissed.

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