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Eviction order against tenant – on default in payment of rent

Rameshchandra Daulal Soni & Anr. v. Devichand Hiralal Gandhi & Ors., CIVIL APPEAL NO.8450/2019 – 14 November, 2019.

The bench encompassing Justice R. Banumathi, Justice A.S. Bopanna and Justice Hrishikesh Roy in the Hon’ble Supreme Court of India dismissed both the appeals with no order as to costs.

The suit property which earlier belonged to Deshmukh Brothers was purchased by the plaintiff under a Sale Deed. The defendants continued as the tenants. The plaintiff informed the defendants about the purchase and had sought for payment of the rents and the defendants failed to pay the same and since according to the plaintiff the defendants were also not using the premises for the purpose for which it was let out, the plaintiff instituted the Regular Civil Suit No.253/1989 seeking eviction of the defendants. The Trial Court directed the defendants No.1 to 7 to handover actual physical possession of the suit property and also to pay the amount of Rs.162. The defendants preferred an appeal before the Principal District Judge and before the High Court which ordered dismissal of revision applications.

Issues raised before the trial court:

  1. Does the plaintiff prove the existence of a landlord and tenant relationship?

  2. Does the plaintiff prove that defendants are wilful defaulter?

  3. Whether suit notice given by the plaintiff is legal and valid?

  4. Does the plaintiff prove that the suit premises is not used by the defendants for more than 6 months before filing this suit without reasonable cause?

  5. Whether the plaintiff proves that the defendant Nos. 1 and 2 have sub­let some portion of the suit premises to the defendants Nos.3 to 7?

  6. Whether the suit is barred by the Law of Limitation?

  7. What due towards the defendants?

  8. Is the plaintiff entitled to receive the amount mentioned in para No.7 of the plaint?

  9. Is the plaintiff entitled to actual physical possession of suit property from defendants Nos.1 to 7 after removing structure thereon?

  10. Is the plaintiff entitled to damages from the defendants from the date of suit till recovery of the possession?

The lease was for 31 years and the Trial Court in that regard had also taken into consideration that the lease had come to an end by efflux of time as contemplated u/s 111 of the Transfer of Property Act. In that circumstance, the defendants No.1 and 2 were considered to be the statutory tenants u/s 5(11) of the Bombay Rents, Hotel & Lodging Houses Rates Control Act, 1947. Thus, the relationship of landlord and tenant between the plaintiff and the defendant No.1 and 2 was established.

In the absence of there being plausible evidence relating to subletting, the Trial Court rejected the contention and held them to be the trespassers liable to be evicted and, in such event, directed all the defendants to vacate.

Insofar as the ground on which the eviction was sought the defendants No.1 and 2 had failed to pay the rent and also that the property was not being put to use for the purpose which it had been rented out, the trial court considered these aspects while answering issue Nos.2 to 4.

In that regard, the notice issued by the plaintiff and the postal receipts were taken into consideration whereby the plaintiff had demanded payment of the rents.

Insofar as the non-user of the premises for the purpose which it had been rented out, the premises was given for the storage of cotton and it was admitted that the business of cotton ginning factory is closed due to ban imposed by Maharashtra Cotton Act and it was being used for storing agricultural equipment and cement. In that view, the trial court had also held that the premises were not being used for the purpose it had been leased and accordingly the grounds on which the eviction petition had been filed were upheld.

It was contended before the Hon’ble Supreme court by referring to section 5(11)(c)(ii) that the defendants No.1 and 2 had two sisters who were also the legal heirs of the original tenant but not made defendants. In that regard, it was contended that the tenancy is inheritable by all the legal heirs and all of them were proper and necessary parties. In the instant case, the contention being urged that the two daughters of the deceased tenants were also entitled to be considered as the tenants under the statutory tenant.

Neither at the first instance when the notice was issued nor in the reply which had been issued when the arrears of rent was demanded did the defendants No. 1 and 2 contend that they were not the only one involved in the business therefore, all the legal heirs had succeeded as tenants on the death of the statutory tenant, the demand, if any, is to be made from all of them.

This would indicate that the defendant was referring to the business being carried on by him alone and there is no reference to the business being jointly carried on with his sisters it would be clear that only first part of section 5(11) (c) (ii) would be available and the sisters of defendant No. 1 and 2 cannot claim right merely due to the fact that they are the legal heirs of the deceased tenant. In none of the proceedings, the said sisters of defendants No.1 and 2 have taken any steps to get themselves impleaded by contending that they are proper and necessary parties failing which their right would be affected and contention, as put forth, is liable to be rejected.

Another contention was that defendant No.5 was an agricultural tenant and as such the rights inter­se between the parties are governed under the Maharashtra Tenancy and Agricultural Lands Act (‘MTAL Act’ for short). It is contended that under the said Act there is a bar contemplated u/s 85 and the Civil Court do not have the jurisdiction. U/s 32 it is provided that by the mere operation of law, every tenant of agricultural land situated in the area to which the Act applies shall become by the operation of law, the owner thereof. The defendant No.5 did not choose to file the written statement in the suit. In that circumstance, the contention to the effect that the suit schedule property was an agricultural property was never the contention raised in the suit or as to whether the issue in the suit should be referred to the Authority under the MTAL Act. In the instant case apart from the fact that no such contention was urged in the suit by filing a written statement, no document to conclude that the defendant No.5 had become the landlord of the property by operation of the law so as to bar the jurisdiction of the Civil Court. On the other hand, the suit schedule property did not continue to exist as an agricultural property but was within Ahmednagar Municipal Limits which was a Town Planning Scheme as on the date of the suit.

In the above circumstance, when the contentions as urged by defendants are unsustainable and in that background when we have noticed that all three Courts have concurrently appreciated the material available on record and have ordered eviction of the defendants, we see no reason to interfere either with the judgment dated 20.07.2015 passed in CRA No.112/2012 or the judgment dated 15.10.2018 in CRA No.157/2018.

Deeksha Nagaraj

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