Bombay High Court
Darryl Dmonte (Since Deceased) Thr. … vs Vadilal Kunverji Gada And Ors. on 6 April, 2026
2026:BHC-AS:16302
Neeta Sawant CRA-417&418-2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 417 OF 2022
WITH
CIVIL REVISION APPLICATION NO. 418 OF 2022
Darryl D'Monte (deleted since deceased)
and Ors. ... APPLICANTS
: VERSUS :
Vadilal Kunverji Gada & Ors. .... RESPONDENTS
Mr. Nusrat Shah with Mr. Kevin Gala, Ms. Sayali Ramugade i/b. Ms.
Samaa Shah, for the Applicant in CRA-418/2022.
Mr. N.V. Walawalkar, Senior Advocate i/b. Ms. Samaa Shah for the
Applicant in CRA-417-2022.
Mr. Mayur Khandeparkar with Mr. Aseem Naphade, Ms. Kausar
Banatwala, Mr. Pratik Shah and Ms. Sneha Mahawar i/b. Mr. Tushar A.
Goradia, for Respondent Nos.4 to 6 in CRA-417-2022.
Mr. Rohan Savant, with Mr. Ashish Dube, Mr. Ashok Chopra, Ms.
Gayatri Gupta and Mr. Aman Saraf for Respondent No.2 in both CRA.
Ms. Tasneem Azmi I /b. Mr. Rajiv Mane, for Respondent Nos.7 to 10 in
both CRA.
Ms. Ema Almeida with Ms. Archana Jha, for Respondent No.11 in both
CRA.
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CORAM : SANDEEP V. MARNE, J.
JUDG. RESD. ON : 17 March 2026.
JUDG. PRON. ON : 6 April 2026.
Judgment:
1) These two Revision Applications challenge the common
judgment and order dated 4 May 2022 passed by the Appellate Bench of
the Small Causes Court in Appeal Nos. 27 of 2019 and 28 of 2019. By the
impugned order, the Appellate Bench has allowed the Appeals and has
set aside the judgment and order dated 3 November 2018 passed by the
Learned Judge, Small Causes Court in Obstructionist Notice No. 15 of
2006 filed in T.E. & R. Suit No. 66 of 2002 and the said Obstructionist
Notice filed by the Applicant has been dismissed. By its judgment and
order dated 3 November 2018, the learned Judge of the Small Causes
Court had allowed Obstructionist Notice No. 15 of 2006 filed by the
Applicants/Plaintiffs and had directed Obstructionist Nos.1, 4, 5 and 6 to
remove themselves from Gala No.1 i.e. Shop No.1 from the suit plot and
handover vacant possession thereof to the Applicant/Plaintiffs. The
Small Causes Court had further directed Obstructionist No.2 to remove
itself from Gala No.2 i.e Shop No.2 in the suit plot and handover vacant
possession thereof to the Applicants/Plaintiffs. Obstructionist No.3 was
directed to remove itself from Gala No.3 i.e. Shop No.3 by handing over
possession thereof to the Applicants/Plaintiffs. Plaintiffs were permitted
to demolish Galas Nos.1 to 3 and secure vacant possession thereof by
recovering costs of demolition from the respective obstructionists. The
Trial Court had also directed conduct of separate enquiry into mesne
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Neeta Sawant CRA-417&418-2022profits under Order XX Rule 12 of the Code of Civil Procedure, 1908 (the
Code).
2) Applicants are Plaintiffs in T.E. & R. Suit No. 66 of 2002 in
which consent decree has been passed for recovery of possession of the
suit premises from original Defendant Nos.8 to 11. However, when
decree was sought to be executed, obstruction was presented by the
obstructionists/Respondent Nos.1 to 6 who claimed possession and
accordingly Applicants took out Obstructionist Notice No. 15 of 2006
which was allowed by the Trial Court. The Appellate Court has however
dismissed the same. The obstructionists’ right to occupy the three
Galas/Shops constructed in suit the suit property is thus upheld by the
Appellate Court despite passing of the eviction decree against the
Defendants in the Suit. Accordingly, the Applicants/Plaintiffs have
preferred the present Revision Applications under Section 115 of the
Code.
FACTS
3) An open plot of land bearing Final Plot No. 650 at Bandra
TPS-III being and situated at Ghodbunder Road (S.V. Road), Bandra,
Mumbai Suburban District admeasuring about 450 sq.yards is ‘the suit
property’. An Indenture of Lease was executed between Domnic A.
D’Monte (lessor) and one Moogatlal J. Bhat, (lessee). The lease in
respect of the suit property was granted for a period of 5 years and 5
months commencing from 1 March 1934 and ending on 31 July 1939. It is
the case of Respondents No.1 to 6 that lessee Moogatlal Bhat started
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operating a petrol pump on the demised land and had apparently
constructed three temporary structures bearing Gala Nos.1, 2 and 3. He
let out Gala No.1 to one Halimabai Madraswala for carrying out Motor
Garage business called ‘Apna Garage’, whereas Gala Nos.1 and 2 were let
out to Mr. Jagannath Tare.
4) Upon expiry of tenure of the first lease, a second lease was
executed on 15 September 1949 between Cecil Joseph D’Monte (lessor)
and Moogatlal J. Bhat (lessee) in respect of the demised land for a period
of 15 years commencing from 1 June 1949 and ending on 31 May 1964.
According to the Applicants, both leases contained a specific convent for
removal of all structures on the demised land upon expiration of the
tenure of lease and for handing over of vacant land to the lessor in the
same condition as the same was first let. Mr. Moogatlal Bhat passed away
on 10 March 1954 before expiry of the second lease dated 15 September
1949.
5) Only 3 heirs of Moogatlal Bhat expressed intention for
execution of fresh lease with the lessor and accordingly third Indenture
of Lease was executed on 6 March 1959, by which 15 legal heirs of
Moogatlal Bhat surrendered their leasehold right in respect of the
demised land to the lessor. Under third lease dated 6 March 1959, a fresh
lease was created in favour of only 3 heirs of Moogatlal viz.
Parvatishankar Moogatlal Bhat, Madhusudan Moogatlal Bhat and
Vijaykumar Moogatlal Bhat (tenants) for a period of 20 years from 1
January 1959. According to the Applicants, thus joint tenancy was
created only in favour of Parvatishankar Bhat, Madhusudan Bhat and
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Vijaykumar Bhat with a specific covenant that the expression ‘tenant’
would include surviving tenant and last surviving heir of the last
surviving tenant. According to the Applicants, the third lease also
contained a covenant for removal of all structures in the land and to
return the land in the same condition as it was first let to Moogatlal
Bhat.
6) The tenure of the lease expired on 31 December 1979.
However, according to the Applicants no action could be taken for
recovery of possession of the demised land from the three lessees,
Parvatishankar Bhat, Madhusudan Bhat and Vijaykumar Bhat on account
of application of provisions of the Bombay Rents, Hotel and Lodging
Houses Rates Control Act,1947 (Bombay Rent Act) to open piece of
land and the three lessees acquiring the status of protected tenants
under the Bombay Rent Act. Madhusudan Bhat passed away on 3 July
1986. Parvatishankar Bhat passed away on 31 May 1995. According to the
Applicants, Vijaykumar Bhat was the last surviving joint tenant and
became the only tenant as per the covenants of the third lease dated 6
March 1959. Vijaykumar Bhat passed away on 10 January 1996 leaving
behind his heirs (Respondent Nos. 7 to 10). Son of Vijaykumar viz. Parag
Bhat had already predeceased him on 23 August 1985. According to the
Applicants, as per the convents of the third lease deed, only the four
surviving heirs of Vijaykumar (Respondent Nos.7 to 10) became entitled
to inherit the leasehold/tenancy rights after demise of the three joint
tenants.
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7) On 16 November 1994, it is claimed that a Deed of
Assignment was executed between Halimabai Madraswala and Girnar
Griha Nirman Pvt. Ltd. in respect of Gala No.1. According to the
Applicants, the said assignment was without the consent of the lessors
and also in violation of provisions of Section 15 of the Bombay Rent Act.
This is how Girnar Griha Nirman Pvt. Ltd claimed rights in respect of
Gala No.1. It is claimed that the alleged rights of Girnar Griha Nirman
Pvt. Ltd were taken over by the company ‘White Rose Properties Pvt.
Ltd.’ (Respondent No.4). However Respondent No. 4 claims that only the
name of company has undergone change.
8) After repeal of the Bombay Rent Act and on advent of the
Maharashtra Rent Control Act, 1999 (MRC Act), the protection in
respect of the tenancy laws no longer apply in respect of open land.
Accordingly, Applicants filed T.E. & R. Suit No. 66 of 2002 under the
provisions of Section 41 of the Presidency Small Causes Court Act,1882
(PSCC Act) against the heirs of the lessees (defendants). Defendant
No.1- Jailaxmi/wife of Moogatlal, passed away during pendency of the
suit. In the Suit, Written Statement was filed by Defendant Nos.2 to 9
(heirs of Madhusudan). However, Defendant Nos.2 to 7/heirs of
Madhusudan filed additional Written Statement on 13 June 2005 stating
inter-alia that they were not the tenants in respect of the demised land
and only heirs of Vijaykumar remained tenants thereof. They also prayed
for dismissal of suit against them. The suit was accordingly withdrawn
against Defendant No.1 (Jailaxmi/wife of Moogatlal) and Defendant
Nos.2 to 7 (heirs of Madhusudan) in view of additional Written
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Statement dated 13 June 2005. The other Defendant Nos.8, 9, 10 and 11
(Respondent Nos.7 to 10 herein) executed Consent Terms with the
Plaintiffs under which Defendant Nos.8 to 11 surrendered their rights in
respect of the demised land. Plaintiff agreed not to press the claim for
mesne profits against them. The suit was accordingly decreed on in view
of consent terms dated 29 April 2006.
9) Plaintiffs put the decree for execution. However, they
encountered obstruction by Respondent Nos. 2 to 6. Accordingly,
Plaintiffs took out Obstructionist Notice No. 15 of 2006 against
Wadilal Gada/White Rose Properties Pvt. Ltd. in respect of Gala No.1.
Vaseem Kapadia and Sana Kapadia, Additional Directors of White Rose
Properties Pvt. Ltd. were also impleaded them as Obstructionist Nos.5
and 6 in respect of Gala No.1 The Obstructionist Notice sought ouster of
Sheela Madhukar Tare in respect of Gala No.2 and of Chandrakant
Jagannath Tare in respect of Gala No.3. Affidavits in reply were filed by
the Constituted Attorney of Vaseem Kapadia and by Sheela Tare and
Chandrakant Tare. Issues were framed in the Obstructionist Notice on
19 January 2007. In the Obstructionist Notice, status quo order was
passed. Plaintiff took out Interim Notice No.23 of 2008 alleging violation
of status quo order. By order dated 30 April 2008, the learned Judge of
the Small Causes Court restrained obstructionist from creating any
third-party rights and carrying out any construction in permanent nature
on the demised land. According to the Applicants, the obstructionists
have made drastic structural changes to Gala No.1 in flagrant violation of
the interim order.
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10) The rival parties led evidence in support of their respective
claims in the Obstructionist Notice. By judgment dated 3 November
2018, the Trial Court allowed the Obstructionist Notice in favour of the
Plaintiff directing Obstructionists in respect of Gala Nos.1, 2 and 3, to
remove themselves and to handover possession thereof to the Plaintiffs
with further liberty to the Plaintiffs to demolish the three galas and
recover costs of demolition from the Obstructionists. The Trial Court
also directed conduct of inquiry into mesne profits under Order XX Rule
12 of the Code.
11) Two separate Appeals were filed against judgment and order
dated 3 November 2018 passed by the Small Causes Court. Appeal No.27
of 2019 was filed by Respondent Nos.2 and 3 (Tares) in respect of Gala
Nos.2 and 3 and Appeal No.28 of 2019 was filed by Respondent Nos.4, 5
and 6 (White Rose Properties and its directors) in respect of Gala No.1.
By judgment and order dated 4 May 2022, the Appellate Bench of the
Small Causes Court has allowed both the Appeals filed by the
Obstructionists and has dismissed the Obstructionists Notice No. 15 of
2006 by setting aside the judgment and order dated 3 November 2018
passed by the Trial Court.
12) Aggrieved by the judgment and order dated 4 May 2022
passed by the Appellate Bench of the Small Causes Court, Applicants
have filed the present Revision Applications. Revision Application No.
417 of 2022 challenges the order of the Appellate Bench passed in Appeal
No. 27 of 2019 filed by Tares in respect of Gala Nos.2 and 3 and Civil
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Revision Application No. 418 of 2022 is filed challenging the judgment
and order of the Appellate Bench passed in Appeal No. 28 of 2019 filed by
White Rose Properties Pvt. Ltd. and its directors in respect of Gala No.1.
SUBMISSIONS
13) Mr. Shah, the learned counsel appearing for the Applicants
in Civil Revision Application No.418 of 2022 submits that the Appellate
Bench of Small Causes Court has erred in reversing well considered
decision of the Trial Court by which the obstructionist notice was
allowed and Respondent No. 1 to 4 were directed to be removed from
Gallas No. 1 to 3. He submits that the Appellate Bench of the Small
Causes Court has committed an egregious error in assuming that there
were 15 independent lessees/ tenants in respect of the demised land
having independent rights and therefore the consent decree operates as
‘surrender of partial tenancy’ and is therefore an ‘incomplete decree’.
That this assumption on the part of the Appellate Court is factually
incorrect from plain reading of Indenture dated 6 March 1959 which
shows that 15 heirs of Moogatlal had surrendered their rights in respect
of the demised land and therefore tenancy was created in respect of only
three joint tenants namely Parvatishankar, Madhusudan and Vijaykumar
with a specific provision for survivorship of the last survivor of them and
the heirs of the last survivor. That admittedly Vijaykumar was the last
surviving joint tenant and his heirs, who were Defendant Nos.8 to 11 in
the suit (Respondent Nos.7 to 10) were the only persons who were
entitled to inherit the leasehold rights in respect of the demised land.
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That Respondent Nos.7 to 10 have signed the consent terms dated 29
April 2006. That therefore the very assumption of the Appellate Bench
about existence of 15 tenants and termination of tenancy qua the heirs
of only one joint tenant (Vijaykumar) is wholly erroneous. That
therefore the Appellate Court has erred in holding that the decree was
not sufficient in law in putting an end to an indivisible contract of lease
in respect of or qua the other heirs of Moogatlal or the heirs of
Moogatal’s deceased heirs. He relies upon judgment of the Apex court in
Suresh Kumar Kohli Versus. Rakesh Jian and another 1, in support of his
contention that it is not necessary for the landlord to implead all heirs of
the deceased tenant. He however submits that all heirs of Vijaykumar
were impleaded as party defendants in the suit.
14) Mr. Shah Further submits that none of the heirs of
Vijaykumar or other heirs of Moogatlal have challenged the consent
decree and that they have accepted the same. That the decree binds
obstructionists who have failed to establish any independent right, title
or interest in the property leased to the said joint tenants. He submits
that the Executing Court cannot go behind the decree between the
parties if it is erroneous in law or on fact as it has been held by the Apex
Court in Vasudev Dhanjibhai Modi Versus. Rajabhai Abdul Rehman
and Others2.
15) Mr. Shah further submits that the Appellate Bench has come
to an erroneous conclusion that the land and the structure were
1 2018 6 SCC 708
2 AIR 1970 SC 1475
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surrendered and by second document dated 6 March 1953 land and
tenants were let out to tenants, and that therefore the obstructionists
have become lawful sub-tenants of the landlord. That the finding is in
the teeth of specific covenants of the lease-deed under which only land
was leased out and structure was put up by Moogatlal at his own costs.
That the structure belonged to the lessee and not to Moogatlal and that
therefore the question of surrender of structure/building to the landlord
does not arise. That subject matter of lease was only in respect of open
land and not the structure. He relies on judgment of this Court in
Goregaon Malayalee Samaj Versus. Popatlal Prabhudas 3 in which it has
been held that in a lease of open land, the structure constructed by
lessee upon termination of lease of open land must be vacated and that
there is no protection available to the tenant under Section 15A of the
Bombay Rent Act. He submits that the subject matter of the case is
covered by the principles of dual ownership as held in the case of Dinkar
S. Vaidya Versus. Ganpat S. Gore4 which is followed in Ramkrishna G.
Dode and others Versus. Anand Dovind Kelkar and Others 5. He relies
on judgment of this Court in Sanjay Ramchandra Parab Versus. Ashok
D. Bhuta 6 reiterating the said legal position regarding dual ownership.
That therefore obstructions do not have any right, title or interest either
to the land or the structure.
16) Mr. Shah relies on specific covenant in the 3 lease deeds
requiring removal of structures upon expiration of term of lease. That
3 1988 1 BCR 358
4 1981 Bom.C.R. 431
5 1999 1 Bom CR. 63
6 CRA No. 409 of 2023 decided on 25 July 2025
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the first lease was in respect of open land without structure. That the
structures were constructed in the year 1948. That since lease has
expired in 1979, there was obligation to remove the structures and
handover possession of vacant land to the lessors.
17) Mr. Shah submits that since there is no privity of contract
between lessors and obstructionists and there was no question of joining
them as parties. In support he relies on judgments in Balwant N.
Vishwamitra and others Versus. Yadav Sadashiv Mule and others7,
Rupchand Gupta Versus. Raghuvanshi Pvt. Ltd.8, B. Gangadhar Versus.
B.G. Rajalingam 9 and Silverline Forum Pvt. Ltd. Versus. Rajiv Trust
and Others 10. That it is settled law that a sub-tenant cannot create
further sub-tenancy without the consent and permission of the landlord
and relies on judgment in Jay Singh Murarji and others Versus. M/s.
Sovani Pvt. Ltd. And Others11.
18) Mr. Shah further submits that the case of acceptance of rent
by the two joint tenants set up by Respondent Nos.1 to 4 is totally
fallacious as rent receipts are not proved. That the Appellate Bench has
erroneously framed Issue No.1 by placing entire burden of proof on the
decree holder rather than requiring obstructionists to prove existence of
independent right to occupy the structures. That it erroneously
permitted obstructionists to question validity of decree without proving
their independent right, title or interest in the suit property. That no
7 AIR 2004 SC 4377
8 AIR 1964 SC 1889
9 1995 5 SCC 238
10 1998 3 SCC 723
11 AIR 1973 SC 770
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notice was required to be issued under Section 106 of the Transfer of
Property Act,1882 to obstructionists with whom the Plaintiffs had no
privity of contract and in support he relies on judgment in Ganga Dutta
Murarka Versus. Kartik Chandra Das and others 12. He also relies on
judgment in Virji Nathuram and others Versus. Krishnakumar 13 in
support of his contention that when a decree is sought to be executed in
respect of the land which was subject matter of original lease, the status
of tenants in the structure on the land is nothing more but of licensees.
He submits that Obstructionist No.1 came in possession of Gala No.1 by
Deed of Assignment in the year 1994 from alleged sub-tenant-Halimabai
Madraswala without the consent of the landlord after expiry of the lease
and it is in contravention to Section 15 of the Bombay Rent Act. That
there is also specific bar in the third lease for subletting under
Clause1(h). That White Properties Pvt. Ltd. and its Directors have come
in possession of Gala No.1 in 2007 by transfer from one Company to
another which is also prohibited under Section 15 of the Bombay Rent
Act and contrary to the law as declared in General Radio and Appliances
Co. Ltd. And others Versus. M.A. Khader 14 which is reiterated in Cox
and Kings. Ltd Versus. Chander Malhotra15. Mr. Shah would therefore
submit that the obstructionists are bound by consent decree and must
vacate the possession of the structures alongwith lessees.
19) Mr. Walawalkar, the learned Senior Advocate appearing for
the Applicants in Civil Revision Application No.417 of 2022 would adopt
12 AIR 1961 SC 1067
13 AIR 1985 Bom 429
14 1986 2 SCC 656
15 1997 2 SCC 687
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the submissions of Mr. Shah. Additionally, he would submit that the
Appellate Court has erroneously not taken into consideration definition
of the term ‘tenant’ in the third lease deed which included only the last
surviving tenant and last surviving heir of the last surviving tenant. He
would take me through the dates of death of each joint tenant and their
legal heirs to demonstrate that Respondent Nos.7 to 10 were the only
last surviving tenants in respect of the leased land and who have validly
surrendered the tenancy rights in respect of the land. He submits that
the lease was only in respect of the open land and the Appellate Court
has erroneously assumed that the same was also in respect of the
building.
20) Mr. Khandeparkar, the learned counsel appearing for
Respondent Nos. 4 to 6 would oppose the Revision Applications and
support the judgment and order passed by the Appellate Bench. He
submits that the Appellate Bench has rightly concluded that the lease
contemplated constructed structures. That the lessors were aware of
presence of sub-tenants in the structures. That consent decree for
surrender of lease is faulty. That the decree does not result in valid
surrender of leasehold rights and that the obstructionists are the lawful
sub-tenants in respect of the structures. He submits that these findings
are recorded after due appreciation of evidence on record and that in
absence of any element of perversity therein, there is no warrant for
interference in the findings recorded by the Appellate Court in exercise
of revisionary jurisdiction under Section 115 of the Code.
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21) Mr. Khandeparkar, would submit that the very frame of the
suit filed by the lessors/landlords/plaintiffs was faulty as the suit
proceeds on a footing that the same was in respect of only an open land
and was therefore not governed by the provisions of the Maharashtra
Rent Control Act,1999. The suit was erroneously instituted under the
provisions of Section 41 of the PSCC Act, ignoring the position that there
are structures on the land occupied by the Obstructionists. That the
plaint itself refers to the structures standing on the property. That
Applicant’s witness admitted existence of structures during the cross-
examination. That the Indenture dated 15 September 1949 specifically
refers to the erected structures. That the last Indenture of 6 March 1959
expressly refers to petrol pump, as well as appurtenances. He relies on
judgment of the Apex Court in D.G. Gose and Co. Pvt. Ltd. Versus. State
of Kerala and another16 in support of the contention that the term
‘appurtenances’ includes constructed structures as well. He relies on
provisions of Section 108(d) of the Transfer of Property Act, 1882 in
support of the contention that if any accession is made to the land
during continuance of lease, such accession becomes part of the lease.
He submits that the plaint proceeds on a fundamentally erroneous basis
that the suit was in respect of open land. There is an admission in the
plaint that the Defendants in the suit enjoyed protection of Bombay Rent
Act after expiry of third Indenture in 1979. Admittedly, at that
time,obstructionists, their predecessors in title were in possession of the
structures on the leased land. That therefore the protection of the
Bombay Rent Act extends to obstructionists as well. That therefore the
suit could not have been filed as ‘T.E. & R. Suit’. That therefore the
16 1980 2 SCC 410
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decree passed in the suit is a nullity as the same is passed by the Court
having no jurisdiction.
22) Mr. Khandeparkar further submits that under Order XXI
Rule 97 of the Code, Obstructionists Application is required to be
adjudicated. Under Order XXI Rule 97 and 101 of the Code,
Obstructionists Application is required to be adjudicated by deciding all
questions between the parties to the proceedings which are ‘relevant for
adjudication of the application’. Therefore even questions regarding
validity of the decree and executability can also be decided under Order
XXI Rule 97 and 101. He relies on judgment of the Kerala High Court in
Koyakutty Thangal and others Versus. Kavunni Raja 17 in support of the
contention of scope of inquiry in an obstructionists application. He relies
on judgment of the Apex Court in Noorduddin Versus. Dr. K.L. Anand 18
in which it has held that Order XXI Rule 101 is an efficacious remedy to
prevent fraud and miscarriage of justice.
23) Mr. Khandeparkar further submits that his clients claimed
tenancy rights in respect of the Shops/Galas through Halimabai
Madraswalla who became a deemed tenant as on 1 February 1973. That
his clients are assignees in respect of the tenancy rights from Halimabai.
He relies on rent receipts in respect of Shop No.1 issued by the joint
tenants under the last Indenture dated 6 March 1959. That Applicant’s
witness has admitted that Defendant Nos.8 to 11 were not even in
possession of the suit property at the time of execution of the consent
17 2014 SCC Online Ker 14819
18 1995 1 SCC 242
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decree. That therefore the case involves conspiracy between the
Plaintiffs and Defendants to the suit (Respondent Nos.7 to 10) for the
purpose of ensuring eviction of the real occupants in the property. That
there is also admission of obstructionists being the sub-tenants of
Moogatlal in the evidence. That Defendant Nos.2 to 9 in the suit had
initially filed Written Statement questioning maintainability of the Suit
and specifically contended that provisions of Maharashtra Rent Control
Act,1999 apply to the suit property. That the stand was subsequently
changed by filing Additional written statement which was affirmed only
by Defendant Nos. 2 to 7. That various admissions made by witnesses of
Applicants when read conjointly with stand of Defendant Nos.2 to 7, it
becomes clear that consent terms are outcome of collusion and fraud
between Applicants and those Defendants.
24) Mr. Khandeparkar further submits that the plaint itself
admits that Respondent Nos.4 to 6 were in occupation of the suit
premises. Yet they were not made parties to the suit. That Respondent
Nos.4 to 6 have become lawful subtenants after expiry of the leasehold
rights of all the three lease deeds. He relies on judgment of the Apex
Court in Mahabir Prasad Verma Versus. Dr. Surinder Kaur 19 in support
of his contention that once sub-tenant is inducted, lawful possession of
such sub-tenant becomes unlawful after expiry of tenancy of the head
tenant. He relies on judgment of the Apex Court in South Asia
Industries Private Ltd. Versus. S. Sarup Singh and others in support of 20
his contention that if sub-tenant is inducted with the consent of the
19 1982 2 SCC 258
20 AIR 1966 SC 346
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landlord, then in eviction suit, such tenant is a necessary party. He also
relies on judgment of the Apex Court in Habibunnisa Begum and others
Versus. G.Doraikannu Chettiar and others21 in support of the
contention that where a contract of tenancy is single indivisible contract
and in absence of a statutory provision, the tenancy cannot split.
25) Lastly, Mr. Khandeparkar concludes by submitting that
consent terms are entered into before a Court having no jurisdiction, the
same are entered between the parties who were not in possession and
the consent terms are put into execution to evict parties who are actually
in possession. He therefore submits that the entire act of execution of
consent terms is a result of collusion and fraud and relies on judgment of
the Apex Court in S.P. Chengalvaraya Naidu Versus. Jagannath and
others22 .He submits that the decree itself is not executable since there is
no lawful compromise between the parties within the meaning of Order
XXI Rule 3 of the Code. He accordingly prays for dismissal of the
Revision Application.
26) Mr. Savant, the learned counsel appearing for Respondent
No.2 in both the Revision Applications (Tare’s) also opposes the Revision
Applications in addition to adopting the submissions canvassed by Mr.
Khandeparkar. Mr. Sawant submits that there is express finding of
Obstructionists being lawful sub-tenants of the Plaintiffs/landlords as
recorded by the Appellate Court. He further submits that the ratio of the
judgments of this Court in Sanjay Ramchandra Parab (supra) and of the
21 2001 (1) SCC 74
22 1994 1 SCC 1
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Apex Court in Jamnadas Dharamdas Versus. Dr. J. Joseph Farreira and
another23 cannot apply to the present case since the judgment was not
under the provisions of the Bombay Rent Act or Maharashtra Rent
Control Act,1999 and the same was filed under Section 41 of the PSCC
Act. That the law enunciated in Jamnadas Dharamdas and Sanjay
Ramchandra Parab applies only when a suit is filed for eviction of
statutory rent under the Bombay Rent Act or Maharashtra Rent Control
Act,1999 and the decree passed under those legislation’s can be enforced
against the sub-tenant. That in the present case, the Plaintiff took a
calculated risk of filing suit for eviction of lessee only in respect of open
piece of land not covering structures or occupants of the structures. That
therefore the principle of removal of occupants from structures erected
by lessee/tenants cannot be applied to the present case.
27) Mr. Savant further submits that the Trial Court has failed to
conduct any inquiry into sub-tenancy created in favour of the
predecessor of Respondent No.2 and has proceeded to hold non-
existence of independent right only on the basis of covenants of lease-
deed dated 6 March 1959. That Respondent No.2 is a protected tenant
under Section 15A of the Bombay Rent Act. That in Sanjay Ramchandra
Parab this Court has specifically excluded cases where occupant is
otherwise protected by the provisions of the Bombay Rent Act. That
there is ample material to prove induction of Mr. Jagannath Tare prior to
1 February 1973. That both Indentures dated 15 September 1949 and 6
March 1959 clearly recorded existence of structures and therefore it
cannot be contended that the lease was granted only in respect of the
23 1980 3 SCC 569
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vacant land. That the decree is not binding on sub-tenants and is
otherwise a nullity.
28) Ms. Azmi has appeared on behalf of Respondent Nos.7 to 10
(heirs of original lessee) and the Defendants, who have signed the
consent terms. She has submitted to the jurisdiction of this Court. Ms.
Almeida, the learned Counsel appearing for Respondent No.1 has not
canvassed any independent submissions.
REASONS AND ANALYSIS
29) The issue which arose before the Trial and the Appellate
Courts, and which again arises for consideration before this Court, is
whether Respondent Nos.1 to 6, who have obstructed execution of the
decree, have any independent rights in respect of Galas No.1 to 3 or
whether they ought to be removed from those Galas with vacation of
possession of the demised land by the tenants/lessees. Another issue for
consideration, to which the Appellate Court has given much importance,
is whether the decree is defective or inexecutable.
30) The Applicants are the owners of the demised land situated
at a very prominent location at Bandra, Mumbai. The predecessor-in-
title of the Applicants initially leased out the land in favour of Moogatlal
by the first Indenture executed on 23 August 1934 for a tenure of 5 years
and 5 months commencing from 1 March 1934 and ending on 31 July
1939. The lease was in respect of only open portion of land with a clear
prohibition on erection of any structure thereon except after obtaining
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necessary permission from the Collector and the Municipality. Under
Clauses-5 and 6 of the first Indenture, Moogatlal agreed to deliver to the
Lessors, vacant possession of the land by removing the constructed
structures. It appears that in the year 1948, Moogatlal set up a petrol
pump in the demised land and also constructed three temporary
structures bearing Gala Nos.1, 2 and 3. He inducted Halimabai
Madraswala in Gala No.1 for carrying out motor garage business. Gala
Nos.2 and 3 were given to Jagannath Tare. On 15 September 1949,
Lessors executed second Indenture in favour of Moogatlal granting lease
for a period of 15 years from 1 June 1949 to 31 May 1964. This time, the
second Indenture noticed construction of structures by Moogatlal after
securing permission of Collector and Municipality. However, Moogatlal
agreed to remove the said structure upon expiration of the lease and to
hand back possession of vacant open land to the lessors. He was
specifically prohibited in clause-8 from assigning, underletting or
parting with possession of the demised premises or any building or
structure thereon without the consent of the landlord. It would be
apposite to reproduce second recital to the Indenture dated 15
September 1949 which reads thus:
(8) Not to assign underlet or part with the possession of the demised
premises and/or any building or structure thereon or any part thereof
without the consent of the Landlord in writing previously had and
obtained provided that this covenant not to assign underlet or part with
the possession of the demised premises and/or the buildings or
structures thereon shall not prohibit the letting of any building or
structure thereon or any part thereof (so long as such letting does not
create any other interest in the demised premises or any building or
structure thereon or any part thereof) to tenant on monthly tenancy;
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(9) To keep the Landlord indemnified against all loss which he may
suffer and all claims and demands which may be made against the
Landlord by reason of anything done or omitted or permitted to be
done by the Tenant in regard to the demised premises or any building
or any structure thereon.
(10) Before the expiration of the term hereby created to remove the
buildings and structures on the demised premises and at the expiration
of the said term to yield up to the Land-lord the demised premises in
the same condition in which it was at the time it was first let to him.
31) It appears that Moogatlal passed away before expiration of
second lease dated 15 September 1949 and there were 15 legal heirs who
inherited the leasehold rights. All the 15 legal heirs of Moogatlal
executed the third Indenture dated 6 March 1959 and surrendered the
leasehold rights in the land in favour of the lessors. By the same
document, a fresh lease was executed by lessors in favour of only three
legal heirs of Moogatlal i.e. Parvatishankar Moogatlal Bhat, Madhusudan
Moogatlal Bhat and Vijaykumar Moogatlal Bhat for a tenure of 20 years.
Thus, Parvatishankar, Madhusudan and Vjaykumar were the only three
persons, who became tenants in respect of the demised land. The
expression ‘tenant’ was defined under the Indenture dated 6 March 1959
as under:
Hereinafter to as the Tenants (which expression unless inconsistent
with the context or meaning thereof shall be deemed to include the
survivors and lest survivor of them and the heirs executors and
administrators of such last survivor and their and his permitted
assigns) of the Fourth Part.
(emphasis added)
32) The Indenture dated 6 March 1959, made a reference to the
earlier Indenture dated 15 September 1949 and one of the recitals was as
under:
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Neeta Sawant CRA-417&418-2022AND WHEREAS by an Indenture of Lease dated 15th day of September
1949 made between the Landlord of the one part and the said Moogatlal
in his own right of the other part and registered with the Sub-Registrar
of Bandra under No.896 of Book No.1 on the 15 day of December 1949
the Landlord demised unto the said Moogatlal the land more
particularly described in the Schedule thereunder written and
hereinafter referred to as the said land with the appurtenances thereto
for a term of 15 years from the 1st June 1949 to 31st May 1964 on a
monthly rent of Rs.55 and on the other terms covenants and conditions
therein mentioned And Whereas the said Moogatlal erected structure
on the said lend used as Petrol Pump now assessed by the Bombay
Municipal Corporation under Ward No.H-5196 Street No.47B, Ghod
Bunder Road
33) By Indenture dated 6 March 1959, surrendering of leasehold
rights by 15 heirs of Moogatlal is recorded as under:
NOW THIS INDENTURE WITNESSETH that in pursuance of the said
agreement and in consideration of the Lease hereinafter granted to the
tenants the heirs of Moogatlal do hereby surrender and the
administrator at the request and direction of the heirs of Moogatlal
doth hereby confirm unto the Landlord ALL AND SINGULAR the land
more particularly described in the Schedule hereunder written and
other the premises comprised in and demised by the said Indenture of
Lease dated the 15th day of September 1949 and all and singular the
appurtenances thereto belonging AND ALL THE ESTATE right title
interest claim and demand whatsoever of the heirs of Moogatlal and
the administrator in to out of or upon the said premises TO THE
INTENT that the residue of the said term of 15 years created by the said
indenture of Lease dated the 15 th day of September 1949 and all other
estate and interest of the heris of Moogatlal and the administrator in
the said land and premises under or by virtue of the said Indenture may
be merged and for ever extinguished in the reversion and inheritenace
of the said land and premises and the heirs of Moogatlal do hereby
respectively covenant with the Landlord that notwithstanding any act
deed or thing by them done or executed or knowingly suferred to the
contrary they the tenants now have good right to surrender the said
land and premises unto the Landlord in the manner aforesaid AND
THAT landlord shall and may at all times hereafter peaceably and
quietly possess and enjoy the said land and premises and receive the
rents and profits thereof without any lawful eviction claim or
demand whatsoever from or by the heirs of Moogatlal or any
person or persons lawfully or equitably claiming from under or in trust
for him or them or any of them AND THAT free from all encumbrances
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Neeta Sawant CRA-417&418-2022whatsoever made occasioned or suffered by them or by any person or
persons lawfully or equitably claiming as aforesaid.
(emphasis added)
34) Thus, under Indenture dated 6 March 1959, all the legal
heirs of Moogatlal first surrendered the leasehold rights in the demised
land. They did not continue to be the lessees in respect of the demised
land on account of express surrender made by them by virtue of
registered deed dated 6 March 1959. By the same document dated 6
March 1959, the lessors made new tenancy in favour of Parvatishankar,
Madhusudan and Vijaykumar by recording in the Indenture as under:
AND THIS INDENTURE FURTHER WITNESSETH that in consideration
of the above-mentioned surrender the Landlord doth hereby demise
unto the tenants ALL THAT piece or parcel of land on Ghod Bunder
Road, at Bandra being Final Plot No.650 of the Bandra Town Planning
Scheme-III admeasuring about 450 square yards and more particularly
described in the Schedule hereunder written and hereinafter referred to
as the said land with the appertances thereto belonging except and
reserved unto the Landlord all mines, minerals, earth, clay, gravel and
sand in and upon the demised premises TO HOLD unto the Tenants for
a term of 20 years on and from the 1st day of January 1959.
35) Clause-1(h) of the Indenture dated 6 March 1959 imposed
restriction on subletting by stipulating as under:
(h) not to assign underlet or part with the possession of the demised
premises and/or any building or structure thereon or any part thereof
without the consent of the Landlord in writing previously had and
obtained provided that this covenant not to assign under let or part
with the possession of the demised premises and/or the buildings or
structures thereon shall not prohibit the letting of any building or
structure thereon or any part thereof (so long as such letting does not
create any other interest in the demised premises or any building or
structure thereon or any part thereof) to a tenant on monthly tenancy;
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36) Under Clause-1(j), Parvatishankar, Madhusudan and
Vijaykumar agreed to remove all buildings and structures before
expiration of term of lease as under:
(j) before the expiration of the term hereby created to remove the
buildings and structures for the time being on the said land and at the
expiration of the said term to yield up to the Landlord the said land
vacant and in in the same condition in which it was at the time it was
first let to the said Moogatlal filled and properly levelled to road level;
37) The Schedule of Indenture dated 6 March 1959 is as under :
ALL THAT piece or parcel of land or ground admeasuring 450 square
yards being Final Plot 650 of Bandra Town Planning Scheme-III lying
being and situate on Ghodbunder Road in Bandra in the registration
Sub-District of Bandra in the Bombay Suburban District.
38) After expiration of tenure of the third Indenture on 5 March
1979, the three lessees namely, Parvatishankar, Madhusudan and
Vijaykumar apparently acquired the status of protected tenants under
the Bombay Rent Act, which also applied to vacant lands. However,
under the Indenture dated 6 March 1959, it was expressly agreed that
tenants would only include the last survivor of Parvatishankar,
Madhusudan and Vijaykumar, as well as heirs, executors and
administrators of such last survivor or their permitted assignees.
Madhusudan passed away on 3 July 1986, Parvatishankar passed away on
31 May 1995. This left only Vijaykumar as the last surviving tenant in
terms of Indenture dated 6 March 1959 and he became the sole tenant.
Vijaykumar passed away on 10 January 1996. Vijaykumar had total five
legal heirs at the time of his death viz Mukta (Wife), Manjiri, Sona and
Mala (daughters) and Parag (Son). Parag had already passed away on 23
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August 1985. Thus, Mukta, Manjiri, Sona and Mala became the last
surviving tenants in respect of the demised land.
39) Since Mukta, Manjiri, Sona and Mala remained protected
tenants under the Bombay Rent Act and therefore, it appears that the
lessors did not file suit under Section 41 of the PSCC Act for ejectment of
those lessees, who remained in possession of the demised land even after
expiration of tenure of lease. After coming into force of the Maharashtra
Rent Control Act,1999 protection in respect of the tenancies of vacant
lands was not continued and provisions of Maharashtra Rent Control
Act,1999 did not apply to tenancies of open lands. After loss of
protection of Rent Act in respect of the suit land, the owners instituted
T.E.& R. Suit No. 66 of 2002 for ejectment of the lessees under Section
41 of the PSCC Act. The suit was instituted against 11 Defendants, which
apparently included several legal heirs of Moogatlal. Defendant No.1 to
the suit was Moogatlal’s wife Jailaxmi. Defendant No.2 to the suit is son
of Madhusudan (Ashok). Defendant No.3 was daughter of another son of
Moogatlal named, Shantooram. Defendant No.4 was Shakuntala (wife of
Madhusudan). Defendant Nos.5 to 7 were the three sons of Madhusudan
named, Jitendrra, Hemendera and Mukesh. Defendant Nos.8 to 11 were
legal heirs of Vijaykumar.
40) It appears that Moogatlal’s wife-Jailaxmi passed away
during pendency of the suit. Defendant Nos.2 to 7, who had initially
opposed the suit by filing written statement, filed additional written
statement pleading that they did not have any right, title or interest in
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respect of the suit premises. They pleaded in the additional written
Statement that they were not tenants of the suit premises nor were
occupying the same. They relied on definition of the term ‘tenants’ in
the last Indenture dated 6 March 1959 to contend that only the last
surviving tenant and legal heirs of the last surviving tenant could fit into
definition of the said term. Since Vijaykumar was the last surviving
tenant, only legal heirs of Vijaykumar remained tenants in respect of the
demised land. In my view, the stand taken by Defendant Nos.2 to 7 was
in accordance with the contractual stipulations under the Indenture
dated 6 March 1959. This is not a case involving any collusion between
Plaintiffs and Defendant Nos.2 to 7. If Defendant Nos.2 to 7 were to
claim any rights in respect of the suit property, they would have incurred
liability to pay mesne profits in the event of passing of decree for
ejectment. Defendant Nos.2 to 7 rightly did not claim any rights in the
demised land by filing additional written statement.
41) Thus, the tenancy in the demised land was claimed only by
Defendant Nos. 8 to 11, who were the legal heirs of the last surviving
tenant-Vijaykumar. Vijaykumar also had a son named, Parag who had
passed away on 23 August 1985 and therefore there was no question of
his impleadment. Vijaykumar’s wife, Mukta and children, Manjiri, Mala
and Sona were impleaded as Defendant Nos.8 to 11 to the suit.
Defendant Nos.8 to 11 executed Consent Terms with the Plaintiffs on 29
April 2006. Under the Consent Terms they accepted termination of
tenancy and agreed for passing of decree for ejectment subject to the
condition of Plaintiffs not claiming any mesne profits from them. In view
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of the Consent Terms dated 29 April 2006, Small Causes Court passed
order dated 6 May 2006 decreeing the suit in view of the Consent Terms.
42) It is contended by the Obstructionists that the suit was
collusive in nature and that the same was compromised in an illegal
manner. It is contended that the suit was filed deliberately against the
persons not in occupation of the suit property and Defendant Nos.8 to 11
had no authority in law to surrender tenancy rights. I am not inclined to
accept these submissions for following reasons:
(i) Firstly, the obstructionists attempted to expand the scope of
enquiry under Order XXI Rules 97 and 101 of the Code by
virtually questioning the correctness of the decree. In those
proceedings the Executing Court deciding the Obstructionist
Notice has a limited remit of inquiry to conduct, which is
mainly about existence of independent right of the
obstructionist to occupy the property. The Court cannot really
expand the scope of its inquiry and examine validity of decree
sought to be executed. In an obstructionist notice, the
Executing Court is not ordinarily suppose to enter into the
realm of merits of the decree. In a case like present one, the
inquiry under Order XXI Rule 97 and 101 would yield positive
outcome for obstructionists only if they can demonstrate
independent right in respect of the property in question.
(ii) Secondly even if it is assumed arguendo that the Executing
Court can determine validity of decree in obstructionist
proceedings, it is seen that the Suit was rightly filed only
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Neeta Sawant CRA-417&418-2022against the lessees/tenants without impleadment of
obstructionists. The tenancy/lease was created only in respect
of the vacant land and not in respect of the constructed
structures. (This is discussed in greater details in latter part of the
judgment). The Obstructionists were therefore not necessary or
even proper parties. The Suit was thus not collusive. It was
genuinely filed for recovery of possession from the lessees who
had contractual obligation to demolish the constructed
structures and hand back vacant possession of the demised
land.
(iii) Thirdly the compromise is lawful one within the meaning of
Order XXIII Rule 3 of the CPC. In a suit filed against the lessees
for ejectment, it is lawful for the lessees to vacate possession by
entering into consent terms. The Suit was filed in the year
2002, after protection of Bombay Rent Act ended in the year
1999, and was compromised by filing consent terms on 29 April
2006. It is thus a lawful compromise.
(iv) Fourthly, it cannot be concluded in the facts and circumstances
of the present case that Defendant Nos.8 to 11 have acted
illegally or in collusive manner. As observed above, Plaintiffs
had unnecessarily impleaded all the legal heirs of Moogatlal
though the tenancy had survived only in favour of the last
surviving tenant being Vijaykumar, and after his death, in
favour of his legal heirs. Madhusudan or Parvatishankar or their
heirs did not have any tenancy rights in the demised land.
Parvatishankar had already passed away issueless on 31 May
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1995. Moogatlal’s son-Shantooram was not a tenant under the
Indenture dated 6 March 1959. Madhusudan’s legal heirs,
Defendant Nos.2, 4 to 7 had not inherited the tenancy rights as
per the stipulations of the Indenture dated 6 March 1959. They
rightly gave up claim in the demised land by filing the
additional written statement. Heirs of Vijaykumar (Defendant
Nos.8 to 11), who were the lessees, gave up tenancy claims in
the demised land by entering into consent terms. Entering into
consent terms by Defendant Nos.8 to 11 needs to be understood
in the context of provisions of Maharashtra Rent Control
Act,1999 which no longer applies to vacant lands. Irrespective
of contention of Obstructionists that there were structures on
the land at the time of execution of Indenture dated 6 March
1959, it was the responsibility of the lessees to remove the
structures constructed on the demised land upon expiry of the
lease. Not only the Indenture spoke of creation of lease in
respect of only vacant land, but both Plaintiffs, as well as
lessees (Defendant Nos.8 to 11) understood it to mean creation
of lease only in respect of vacant land to which provisions of
Maharashtra Rent Control Act,1999 did not apply. Defendant
Nos.8 to 11 thus carried the risk of occupying the suit property
(either by themselves or through obstructionists) and to pay
mesne profits in respect of the land in the event of passing of
decree for ejectment. Considering the time taken for decision of
suits before the Small Causes Courts at Mumbai, as well as
location of the land at prime spot in Bandra at Mumbai, in my
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view, Defendant Nos.8 to 11 rightly used the common and
commercial sense and consented for passing of ejectment
decree on condition of Plaintiff not claiming any mesne profits.
If Defendant Nos. 8 to 11 were to continue contesting the suit,
such an act had the potential risk of incurring of liability to pay
mesne profits running into crores of rupees. It therefore cannot
be contended that the act of Defendant Nos. 2 to 7 in giving up
tenancy claims and of Defendant Nos.8 to 11 in filing the
consent terms is an act of fraud or collusion. The compromise
therefore cannot be treated as unlawful in any manner.
(v) Fifthly the contention of obstructionists that the suit was
deliberately filed against Defendants who were not in actual
physical possession is without substance. The lessors-Plaintiffs
had no privity of contract with the obstructionists. The lease
was created in favour of Moogatlal, who operated a Petrol
Pump on the demised land and had constructed three
sheds/galas possibly for auxiliary services such as tyre shop,
garage, etc. How such small galas can occupy the whole of the
land after discontinuation of Petrol Pump is difficult to
comprehend. Mr. Shah has alleged gross encroachments by the
obstructionists over open plot. He has contended that Gala No.
1, there are unauthorised transfers and what stands at the site
is a swanky showroom. Be that as it may. That issue is raised in
the separate proceedings pending before this Court. From the
contention raised on behalf of the obstructionists, it is
apparent that the entire plot is occupied by them. The case thus
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involves, induction by the lessee of third persons in small
structures for providing auxiliary services and such third
persons preventing the owners of land from enjoying the same
even after the lessee has surrendered possession of the land. In
my view, there was no need to implead the Respondents as
party Defendants to the suit. In any case, the alleged right of
occupation of the structures has been adjudicated in the inquiry
under Section 101, which is akin to an inquiry in the suit.
43) Now I proceed to examine the manner in which the Trial and
Appellate Courts have dealt with the matter. The Trial Court had made
the Obstructionists Notice absolute by judgment and order dated 3
November 2018. The Trial Court held that there was no privity of
contract between Plaintiffs and Obstructionists in respect of 3 galas. The
Trial Court further held that obstructionists could not prove any
independent right to occupy the three galas and that since they were
inducted by the tenants, they were under obligation to remove
themselves after passing of ejectment decree against the tenants.
44) The Appellate Court has however reversed the decree passed
by the Trial Court. Perusal of the judgment of the Appellate Court would
indicate that the same proceeds on a fundamentally erroneous
assumption that the tenancy subsisted in favour of 15 legal heirs of
Moogatlal and that the decree was passed only against some of the
tenants and not against all. This is clear from following findings recorded
by the Appellate Bench of the Small Causes Court:
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13. This point goes to roots of this matter. The decree is not against any
of the obstructionist. Decree is against only a few of tenants of land.
It is a cardinal principle of Rent Act that, if there are more than one
tenant, tenancy of all the tenants should come to an end. There is
another fundamental rule of tenancy that tenancy comes to an end only
by way of legitimate recognized modes of termination, that is to say, by
decree of Court, by surrender or by forfeiture followed by decree for
possession.
16. If the exact wordings of second lease deed dated 6/3/1959 are
read, there are 15 independent lessees, who are co-tenants of land
simultaneously, having independent tenancy rights. All of them
belongs to one family is just incidental. So far as their rights are
concerned, each of the tenant has independent tenancy right, and law
expects termination of right of each of the tenant.
18. If the names of tenants are compared with defendants, following
picture emerges. (Lessee No. 1 to 15 are referred to as number given
against their respective names in paragraph No. 4 of this judgment).
i. Jaylakshmi w/o Moogatlal is lessee No. 1; she is not party to
the suit after her death. Her tenancy right devolves upon all her
legal heirs and just deleting her name will not serve purpose
unless all her legal heirs on whom her tenancy right devolves
surrenders their tenancy right. Her legal representatives were
then necessary party to the suit.
ii. Parvatishankar s/o. Moogatlal is lessee No. 2; he is not party
to the suit.
iii. Vijaykumar s/o Moogatlal is lessee No. 4; he is not party to
the suit. He died prior to the suit. But his widow is defendant
No. 8 to the suit. She has surrendered her right, which she
inherited after Vijaykumar. But, Vijaykumar’s entire tenancy
rights will not devolve upon his widow. He has one son Parag
(lessee No. 13) and two daughters viz. Mala (defendant No. 10)
and Malini (lessee No. 10). The third daughter who has
compromised the suit appears to have born subsequent to the
lease deed dated 6/3/1959. His widow and three daughters
surrendered their rights but tenancy right which Parag
Viajaykumar received by inheritance prior to date of suit (on
death of Vijaykumar) has not been surrendered. Likewise the
right of Parag. which he holds as lessee No. 13 has not been
surrendered.
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iv. Madhusudan (lessee No. 3), his children Hemendra
Madhusudan (lessee No. 5), Ashok Madhusudan (lessee No. 6),
Jitendra Madhusudan (lessee No. 7), Kirti Madhusudan (lessee
No. 9), Malini Madhusudan (lessee No. 10), Jitiksha
Madhusudan (lessee No. 11) and Kalpana Madhusudan (lessee
No. 12). Neither of them is party to the suit, nor they have
surrendered their tenancy rights.
v. The defendants No. 1 to 9 were deleted from array of
defendants. Ashok Moogatlal (defendant No. 2), Nutan S. Bhat
(Defendant No. 3), Shakuntala M. Bhat (defendant No. 4),
Jitendra M. Bhat (Defendant No. 5), Hemendra M. Bhat
(Defendant No. 6) and Mukesh M. Bhat (Defendant No. 7) were
parties to suit. But point to be noted is that these defendants
No. 2 to 4 were not parties to the lease deed. Those were
improperly made parties. Therefore, defendants No. 2 to 4,
being as defendant or not being there on deletion won’t made
any difference to the merits of the suit.
19. To be precise, there were 15 tenants of land. Out of them, Smt.
Jayalaxmi (defendant No. 1) died and Mala Vijaykumar (defendant No.
10) surrendered tenancy absolutely. Manjiri Varde Defendant No. 9)
and Sona Rajiv Kapadiya (Defendant No. 11) are daughters of late
Vijaykumar Moogatlal Bhat. Out of 14, tenancy is surrendered by 3 i.e.
defendant No. 9 to 11 as defendant No. 8 is not tenant in her own right,
still tenancy of nine tenants remains with them. Likewise, tenancy of
Jaylakshmi (tenant No. 2) and Vijaykumar (tenant No. 4) remains in
part as all the legal heirs have not surrendered the tenancy rights which
is transmitted on them.
21. The preposition is simple. On perusal of only two documents i.e.
consent decree dated 6/5/2006 and Lease deed dated 6/3/1959 (Exhibit
No. 93 in suit). This can be understood by any man of ordinary
prudence that consent decree is valid surrender of tenancy to the
extent of (partial) tenancy of the signatory to consent terms.
Obviously, the tenancy rights of all other parties to lease deed
dated 6/3/1959 (Exhibit No. 93) still remains with them and they all
are unaware of this T.E. & R. Suit No. 66 of 2022 as well as consent
decree and these subsequent proceedings for simple reasons that the
plaintiff choose to not to make them party. Only branch of Late
Vijaykumar signed Consent Decree. Four signatory to consent terms are
widow and three daughters of Vijaykumar Moogatlal Bhat. His son
Parag Vijaykumar Bhat has not surrendered his tenancy.
23. Decree of possession of land on termination of lease can be
enforced as a whole or it cannot be executed. Considering the limited
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surrender of three tenants out of 14 tenants, it is valid decree to
the extent of surrender of tenancy rights of signatory individuals.
However, it is not a decree which can be executed to take
possession of the suit land. Unless there is decree against all the
tenants or their legal heirs, it cannot be an executable decree.
Consent binds only the signatory. For rest 11 out of 14 tenants,
the landlord should get a separate decree and only thereafter both
the decrees can be executed as once and not otherwise.
24. A specific query was put to learned advocate for plaintiff/decree
holder as to how it can be executed unless all the tenants signs consent
decree, to which learned advocate replied that there is indemnity
clause where the signatory to consent decree has undertaken to Court
to indemnify other tenants if any problem arises.
45) Thus, the Appellate Court has proceeded on a fundamental
erroneous assumption that the Indenture dated 6 March 1959 created
tenancy in favour of 15 tenants and that the surrender was made only by
3 tenants. The above findings recorded by the Appellate Bench are
perverse to the core and depicts misreading on the part of the Appellate
Court of the third Indenture dated 6 March 1959, which created tenancy
only in favour of three persons, namely Parvatishankar, Madhusudan and
Vijaykumar. It read only the names of 15 heirs on the Indenture without
bothering to read what those 15 heirs did by signing the Indenture. Their
names appear in the Indenture not for creation of any rights in their
favour but only for recording of an act by them of surrender of rights in
the land. The Appellate Court however has erroneously assumed that the
15 persons named in the Indenture dated 6 March 1959 became tenants
of the demised land. The Appellate Bench did not even bother to read
contents of Indenture dated 6 March 1959 which had the effect of
surrender of tenancy by the 15 heirs of Moogatlal and creation of
tenancy in favour of only 3 tenants. The finding of the Appellate Court in
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para-16 of the Judgment that ‘if the exact words of second lease deed dated
6 March 1959 are read, there are 15 independent lessees, who are co-
tenants of land simultaneously’ is so egregiously perverse that even Mr.
Khandepakar has not made any attempt to support the same. He fairly
admits the error on the part of the Appellate Court in assuming that
tenancy was created in favour of 15 lessees by Indenture date 6 March
1959.
46) It would also be necessary to take note of few more perverse
findings recorded by the Appellate Court. In para-21 of the judgment,
the Appellate Court has held that ‘His son, Parag Vijaykumar Bhat has not
surrendered his tenancy’. This finding is perverse and is recorded in
ignorance of the fact that Parag Vijaykumar Bhat had passed away on 23
August 1985. In para-18 of its judgment the Appellate Court has
anaylised as to how the suit filed was flawed on account of non-
impleadment of all the lessees. Again, this analysis is premised on a
fundamental erroneous assumption that the tenancy was created in
favour of 15 tenants (heirs of Moogatlal). This is clear from the
overarching finding recorded in opening part of Para 18 before
commencing the analysis that ‘If the names of tenants are compared with
defendants, following picture emerges. (Lessee No. 1 to 15 are referred to as
number given against their respective names in paragraph No. 4 of this
judgment)’. Thus, the Appellate Court’s analysis in clauses (i) and (v) of
Para 18 is premised on fundamentally wrong assumption that tenancy
was created in favour of 15 tenants by the Indenture dated 6 March 1959.
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47) This is how the impugned judgment of the Appellate Court
is replete with numerous errors. The Appellate Court has dismissed the
Obstructionist Notice by allowing the Appeals filed by the
Obstructionists on a fundamentally flawed foundation that the decree
was not validly passed as surrender was only by 3 out of the 15 tenants.
The entire judgment is built upon by the Appellate Court on this
fundamentally flawed assumption. Since the basic assumption itself is
defective, the entire judgment is rendered grossly erroneous and the
same is liable to be set aside only on this ground. In fact, this is the
reason why attempts were made on behalf of the obstructionist towards
the end of the hearing for seeking remand of the Appeals for fresh
decision. Though remand of the Appeals for fresh decision could have
been an easy course of action for this Court, I am not inclined to adopt
the said course of action since the Appellate Court has walked a step
ahead and has also recorded findings on independent rights of the
obstructionists. Also, obstructionists have been resisting the execution
of the decree for the last 20 long years, and an order of remand would
obviously enure to their benefit by continuing to occupy the structures.
Since findings are recorded both by the Trial and the Appellate Courts on
right of the obstructionists to occupy the structures, it is appropriate
that this Court determines correctness of those findings.
48) Now I proceed to examine the issue of establishment of
independent right by the obstructionists to occupy the structures
constructed on the demised land. It is sought to be contended by
Respondent Nos.4 to 6 that the Executing Court is bound to decide all
the issues that are relevant for adjudication of the application under
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Order XXI Rule 101 of the Code. This submission is canvassed essentially
to support the exercise undertaken by the Appellate Court for
determining validity of compromise decree under Rule 97 of Order XXI.
If execution of decree is obstructed by any person in possession of the
property, the decree holder can make an application to the Executing
Court complaining of such obstruction. Rule 101 of Order XXI deals with
questions to be determined by the Executing Court in Obstructionist
Notice and provides thus:
101. Question to be determined–
All questions (including questions relating to right, title or interest in
the property) arising between the parties to a proceeding on an
application under rule 97 or rule 99 or their representatives, and
relevant to the adjudication of the application, shall be determined by
the Court dealing with the application and not by a separate suit and
for this purpose, the Court shall, notwithstanding anything to the
contrary contained in any other law for the time being in force, be
deemed to have jurisdiction to decide such questions.
Bombay.-In Order XXI, in rule 101, insert the following proviso,
namely:-
“Provided that when the Court is not competent to decide such
question due to want of pecuniary jurisdiction the Court shall send the
execution case to the Court of the District Judge to which the said
Court is subordinate and thereupon the Court of the District Judge or
any other competent Court to which it may be transferred by the
District Judge, shall deal with it in the same manner as if the case had
been originally instituted in that Court.”
49) Thus, under Rule 101 of Order XXI, the Executing Court can
decide ‘all questions’ including the question relating to right, title or
interest of the Obstructionist in the property and the one which are
relevant to the adjudication of the application and that the same cannot
be adjudicated by a separate suit. Thus, every question relating to right,
title or interest in the property arising between the parties to
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Obstructionist Notice, but which are relevant to the adjudication of the
application are to be determined by the Executing Court itself. This
would essentially mean that if a question relating to right, title or
interest to the property between an obstructionist and decree holder
arises in application filed under Order XXI Rule 97, the same has to be
decided by the Executing Court and cannot be left open to be decided in
a separate suit. This essentially means that if obstructionist can prove
his title to the land in respect of which decree for possession is secured,
the Executing Court can decide the said issue relating to title. Similarly,
if obstructionist can prove his right to occupy the property (without
title), that right can also be determined by the Executing Court under
Rules 97 and 101 of Order XXI.
50) This would not necessarily mean that in an inquiry under
Rule 101, the Executing Court can also determine the issue of right, title
or interest between the decree holder and defendant in the suit. Use of
the words ‘arising between the parties to a proceeding on application under
Rule 97 or 99’ and more particularly the words ‘and relevant to the
adjudication of the application’ would mean that only such questions that
are relevant to adjudication of Obstructionist Notice can be decided by
the Executing Court, which may not necessarily mean the right, title or
interest between the Plaintiff and Defendant. Only the questions
relevant to adjudication of the ‘application’ filed under Rule 97 or 99 can
be determined by the Executing Court. Rule 101 does not confer power
on the Executing Court to reopen the decree and redetermine the issues
answered between the parties to the suit while deciding the same. Since
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obstructionist is not heard while deciding the suit, only the questions
relating to right, title or interest in the property ‘arising between the
parties to a proceeding on an application under rule 97 or rule 99’ and the
ones that are relevant to the adjudication of the ‘application’ can be
decided in inquiry under Rule 101 of Order XXI. Thus, the question of
right, title or interest in the property must be germane to the ‘objection
application’ filed under Rule 97 of Order XXI. The questions which are
germane to decision of ‘suit’ cannot be reopened in inquiry under Rule
101. The real objective behind Rule 101 is to prevent multiplicity of
litigation. It provides for remedy for determination of questions between
decree holder and third parties. It ensures that questions of title or
interest of third parties need not be determined in a separate suit and
can be determined in Rule 101 inquiry itself. The Executing Court cannot
hold that the obstructionist must secure declaration of title or
entitlement of possession from another Court and must determine that
issue in Rule 101 inquiry. However, this would not mean that Rule 101 is
aimed at reopening the inquiry in the Suit between Plaintiff and
Defendant and redetermination of issues that are already decided in the
suit. Rule 101 envisages adjudication of disputes between decree holder
and third parties.
51) In support of the contention that the Executing Court can
decide the issue of validity of compromise executed between the Plaintiff
and Defendants to the Suit, Mr. Khandeparkar has relied on judgment of
Kerala High Court in Koyakutty Thangal (supra) in which it has held in
paras-69 and 70 as under :
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69. Regarding the burden of proof relating to obstructions, divergent
views have been expressed in similar matters. One view is that the
burden is entirely on the obstructionist for a determination of his right,
title or interest to be adjudicated. Another view is that, the decree-
holder, even though he is clothed with a decree which is not inter
parties, cannot be absolved from his burden to prove his right or title
over the property. When the obstructionists are capable of showing
that they have some rights, title or interest over the immovable
properties, which are to be adjudicated within the meaning of Order
XXI Rule 101 CPC, it cannot be said that the decree-holders, who are
clothed with a decree which is not inter parties, have no burden in the
matter. An adjudication under the complete code contained in Order
XXI Rule 97 and the related provisions is admittedly in the form of a
suit and the determination through such an adjudication has the effect
of a decree within the meaning of Order XXI Rule 103 of the Code. In
such case, this Court is of the view that an obstructionist has even the
right to challenge the title of the decree-holder also. Further, such an
obstructionist has the right even to challenge the executability or
otherwise of the decree. If by any means, the decree has become
inexecutable, it cannot be said that an obstructionist cannot raise such
a question. He can validly challenge the executability of the decree
70. A decree-holder cannot always rest in an arm chair by possessing a
decree by saying that he has got title, even when the decree contains it.
Article 129 of the Limitation Act specifies the period of limitation for
filing an application for possession after removing resistance or
obstruction to delivery of possession of immovable property, as 30
days. When the law says that such an application is for possession, it
involves an adjudication of his right to possession. When it has to be
considered as a suit, it cannot be said that such an applicant has no
burden at all.
52) The judgment in Koyakutty Thangal does not assist the case
of the obstructionists in contending that the Executing Court can also
decide the issue of validity of compromise decree made between the
Plaintiffs and Defendant Nos.8 to 11. It is held by the Kerala High Court
in Koyakutty Thangal that when obstructionists are capable of showing
that they have specific right, title or interest over the property, it cannot
be said that the decree holders have no burden in the matter to prove his
right, title or interest and that obstructionist can also challenge title of
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the decree holder. The Kerala High Court has further held that a decree
holder cannot always rest in an arm chair by possessing a decree
representing that he has certificate of title. I am in respectful agreement
with the view expressed by the Kerala High Court. To illustrate, if
Plaintiff secures a decree against the Defendant-Vendor for specific
performance and as a result of such decree, seeks to remove another
person in possession through execution and such person in possession
sets up a case of title of having purchased the property much before
execution of agreement of sale-deed in favour of plaintiff, the Plaintiff
cannot rely upon mere decree and obstructionist is entitled to challenge
Plaintiff’s title over the property. However, this principle does not mean
that an obstructionist, who merely claims possessory right in respect of
the structures on demised land, can question validity of ejectment decree
passed against lessee who inducted them.
53) If an obstructionist claims possession through lessee, he will
have to necessarily remove himself with ejectment decree passed against
the lessee. On the other hand, if obstructionist is in a position to claim
independent right to occupy the structure, he needs to establish that
right rather than questioning the legality of ejectment decree passed
against the lessee who inducted him. This means that if a tenant inducts
sub-tenant without the consent of the landlord, but that sub-tenant has
a statutory right/protection from being removed, he can obstruct
execution of decree passed against the tenant by establishing his
independent statutory right to occupy the property. In such a case, it is
not necessary for a sub-tenant, who has statutory right to occupy the
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property, to question legality of ejectment decree passed against the
head tenant. In an inquiry under Order XXI Rule 101, such obstructionist
can prove his statutory right to occupy the property and defeat execution
of the decree, instead of filing a separate suit.
54) Reliance is also placed on behalf of obstructionists on
judgment of the Apex Court in Nooruddin (supra) in which it is held that
the provision under Order XXI Rule 101 of the Code is an efficacious
remedy to prevent fraud and miscarriage of justice. Again, there can be
no dispute in respect of the proposition enunciated by the Apex Court in
Nooruddin. However, the Apex Court has held that person presenting
obstruction must establish independent right than that of judgment
debtor. The independent right must be own right of the obstructionist to
possess the property. Therefore, even as per the judgment of the Apex
Court in Nooruddin it was incumbent for the Obstructionists to establish
their independent right to occupy the three Galas on the demised land in
the inquiry under Rules 91 and 101 of Order XXI of the Code. They
unnecessarily made an attempt before the Trial and the Appellate
Courts, and which attempt is also repeated before me, in poking holes in
the manner in which the Suit was filed and the manner in which the
same is compromised. May be the obstructionists could question their
own non-impleadment to the suit and to this limited extent, they could
have raised issues relating to the manner of filing and compromising the
suit. However, they cannot question validity of the decree on the ground
that all the Defendants in the suit had tenancy rights and only few of
them surrendered the same. Once some of the Defendants admit that
they are not the tenants and the rest of Defendants, claiming tenancy,
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surrender the possession of the demised land, obstructionists cannot
seek to establish in Rule 101 of Order XXI inquiry that each and every
Defendant had tenancy rights and some of them could not have filed
additional written statement giving up claim of tenancy. Also, the
Executing Court could not have gone into the issue of validity of
surrender of tenancy rights by finding out who all were the tenants, etc
in the inquiry under Rule 101 of Order XXI.
55) It must be noted that the other heirs of Moogatlal have not
questioned the manner in which the suit is compormised. They do not
claim any right, title or interest in the demised land or in respect of the
structures standing thereon. It is only the obstructionists who are
attempting to protect their possession by pointing out the defects in the
suit and the decree. Thus the attempt to poke holes in the decree is
aimed at somehow defeating execution of decree and latch on to
possession by obstructionists when the Defendants have no objection to
the decree. It is quite another aspect that this Court is unable to notice
any defect in the Suit or in the compromise decree for the reasons
discussed in the preceding paras. Thus, the only way left for the
obstructionists in the present case was to establish their independent
right to occupy the 3 galas constructed on the demised land.
56) Coming back to the main issue about existence of
independent right of obstructionists to occupy the three galas on the
demised land, the Trial Court has held that they could not establish such
independent right. The Appellate Court, on the other hand, has held that
the obstructionists became lawful sub-tenants of the plaintiff. The
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findings recorded by the Appellate Court in this regard in paras-27, 28
and 29 as under:
27. By the date of second lease deed dated 6/3/1959, heirs of Moogatlal
surrendered the land to landlord Cecil Joseph D’Monte. Second lease
deed is an independent contract dated 6/3/1959. It is not continuation
or renewal of earlier lease deed. On 6/3/1959, where new lease deed was
created, the land already had building over it, and the obstructionist,
who were tenants of Moogatlal were in possession of building in the
capacity of tenants. Before death of Moogatlal, they were tenants of
Moogatlal. On death of Moogatlal on 10/3/1954, they become tenants
of all the legal representatives of Moogatlal.
28. On the date of second lease deed dated 6/3/1959, prior to signing of
second lease deed, there was surrender of rights by legal
representatives of Moogatlal. Moogatlal was owner of buildings. He was
tenant of land. Obstructionists claim that land as well as building
structures were surrendered to landlord. Plaintiff/decree holder says
only tenancy of land was surrendered.
29. If the case of obstructionists is believed, land and structure were
surrendered, and by second document dated 6/3/1953, land and
structure were let out to tenant. In that event, lessee would become
tenant of land as well as tenant of building. If these 14 members
(tenants) as abovestated are tenants of building, the
obstructionists become lawful subtenants of plaintiff/landlord.
(emphasis added)
57) Thus, the Appellate Court has held that the Indenture dated
6 March 1959 created a lease noticing that there were structures
occupied by inductees of Moogatlal, that such inductees were tenants of
Moogatlal and that after Moogatlal’s death, the inductees became
tenants of legal heirs of Moogatlal. The Appellate Court further held that
the land and structures were surrendered by Indenture dated 6 March
1959 and fresh lease was created in respect of the land and structures on
6 March 1959 and that therefore obstructionists became lawful sub-
tenants of the Plaintiffs. This is the only finding in the entire judgment
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of the Appellate Court for establishing alleged independent right of the
Obstructionists to occupy the 3 galas on the demised land.
58) As observed above the entire judgment of the Appellate
Court is built upon and premised essentially on non-surrender of
tenancy by all 15 tenants resulting in an imperfect decree. It has briefly
meandered into the issue of existence of independent right of
obstructionists to occupy the structures and had returned to its core
inquiry into imperfect decree. Thus after cursory findings recorded in
Paras 27 to 29 of the Judgment on the issue of existence of independent
right of obstructionists to occupy the structures, the Appellate Court
went on to hold in para-30 of the judgment that the decree was not for
possession of 100% leasehold rights since the surrender was not by all
tenants. Thus, after sketchily holding that obstructionist had become
sub-tenants, the Appellate Court once again went on to its original track,
and has held in paras-30 and 31 of the judgment as under:
30. But even otherwise, leaving the case of sub-tenancy aside, landlord
cannot enforce a decree for possession against the obstructionist
(tenant of land lessee) unless the lease of lessee is terminated by
decree. Tenant of the premises (obstructionist) has right to resist the
execution unless the right of the land lessee (his landlord) is lawfully
terminated by the decree which is sought to be executed.
31. For the abovestated reasons, it is held that the Consent Decree in
T.E. & R. Suit No. 66 of 2002 cannot be enforced against any of tenants
in building until the landlord acquires right to demolish this structure.
Right to demolish the structure is not the part of the decree but an
incidental consequence of decree for possession of open land. Unless
the landlord/plaintiff gets a decree terminating rights of all 14 tenants,
he will not have right to obtain possession of land beneath the
building; and unless the landlord gets that kind of decree, it is a stage
premature for the landlord to seek vacant possession of shop
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(structure) possessed by obstructionist. It is an attempted misfeasance
on part of the plaintiff/decree holder by exceeding beyond the scope of
decree. It is well within rights of the obstructionist to obstruct
execution of decree beyond the authority of decree. For this reason, it is
held that, as the decree is not for possession of 100% of the lease right,
it cannot be enforced for seeking possession of suit premises from
obstructionists for purpose of demolishing the building to get
possession of open land, which is subject matter of suit.
59) Thus, the Appellate Court has not conducted an in-depth
inquiry for upholding the independent right of obstructionists to occupy
the structures. After recording stray finding of lawful sub-tenancy in
para-29 of the judgment, there is no further inquiry into establishment
of independent right to occupy the structures. The judgment is
essentially rendered on the footing that the decree was incomplete and
inexecutable against the obstructionists. This is clear from further
findings by the Appellate Court in paras-50 and 53 of the judgment as
under:
50. It will be improper if this Court decides or makes observation at this
stage over nomenclature of alleged right of obstructionists to be in
possession of premises. But, they have right to be evicted only by
following due process of law. There should be a valid and complete
decree for possession. Complete decree is not a legal term. This Court
therefore try to explain it with a general illustration to convey how the
Court tries to distinguish between a complete decree and incomplete
decree.
53. For the abovestated reasons, it is held that the decree in T.E. & R.
Suit No. 66 of 2002 cannot be enforced against the obstructionists.
Accordingly, point No. 1 is answered in the negative.
60) Thus, except recording a stray finding of lawful sub-tenancy
in paras-27 to 29, the entire judgment from paras-13 to 25 and 30 to 55 is
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based on the finding that the decree itself was ineffective and could not
be executed.
61) However, since the Appellate Court has recorded finding of
lawful sub-tenancy in favour of the obstructionists, albeit in a sketchy
manner, I proceed on an assumption that it has recognized some
independent right of the obstructionists to occupy the structures.
However, it must be observed at the very outset that the manner in
which the Appellate Court has recorded the conclusion of lawful
subtenancy is not very convincing. No provision of law is discussed, nor
any case law is examined for holding the obstructionists to be lawful
subtenants. Since Appellate Court is totally silent on any provision in
law about sub-tenancy of obstructionist, Mr. Khandeparkar and Mr.
Savant have strenuously placed reliance on provisions of Sections 15 and
15A of the Bombay Rent Act. It is submitted that the obstructionists
were inducted by the erstwhile lessees into the structures well before 1
February 1973 which is the datum line prescribed under Sections 15 and
15A of the Bombay Rent Act and that therefore the obstructionists/their
predecessor in title became lawful tenants in respect of the structures
who enjoy protection of the rent control legislation.
62) However, the issue in this regard appears to be squarely
covered by the judgment of this Court in Sanjay Ramchandra Parab
(supra) in which, the obstructionists had challenged orders passed by the
Small Causes Court and its Appellate Bench directing their removal from
structures in execution proceedings taken out by decree holders, who
had secured decree for eviction against the lessee of the land. The
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Plaintiff had granted lease in respect of the vacant land for a period of 25
years in favour of the lessee who was permitted to put up buildings,
structures or sheds on the demised land. The lessee was also entitled to
assign the buildings and structures alongwith leasehold interest in the
land. The Plaintiffs filed R.A.E. & R. Suit before the Small Causes Court
for recovery of possession of land alongwith shed located thereon. The
R.A.E. & R. suit was dismissed but the Appellate Court allowed the
Appeal and passed eviction decree for possession of the suit premises.
When decree was put in execution, possession warrant was obstructed by
56 different persons claiming possession in respect of the various
structures constructed on the demised land. Plaintiffs therefore took out
Obstructionist Notice, which was resisted by the 56 obstructionists
claiming independent right in respect of the structures. The issue before
this Court was whether the obstructionist had any independent right to
possess the structures erected by the original lessee in view of
permission granted to them under the clauses of lease. This Court noted
the ratio of the judgment in Ramkrishna Girishchandra Dode and Ors.
Versus. Anand Govind Kelkar and another24 which in turn had relied
upon judgment in Goregaon Malayalee Samaj (supra) and This Court
held that if the tenants of the demised land constructed structures and
inducted third parties, their status vis-a-vis the land is necessarily that
of licensees and that they do not enjoy protection of provisions of
Section 15A of the Bombay Rent Act. This Court also referred to the
judgment of the Apex Court in Jamnadas Dharamdas (supra) in which it
was held that the landlord is entitled to claim relief of possession of land
without recognizing rights of obstructionists who were inducted by the
24 1999 1 Mh.LJ 37
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tenant in structures constructed by him. This Court held in Sanjay
Ramchandra Parab in paras-16 to 19 as under :
16) The facts of the present case appear to be somewhat similar to the
facts involved in Ramkrishna Girishchandra Dode in which the Single
Judge of this Court (A.V. Sawant, J.) has noted the plight of the
landlord/decree holder trying to execute the decree in petitions filed by
the obstructionists. The suit premises therein comprised of open piece
of land in respect of which, a registered lease-deed was executed in
favour of the lessee for a period of 50 years. The lease was terminated
by issuance of notice and suit was instituted for recovery of possession.
One of the grounds for eviction was carrying out construction on the
plot and induction of outsiders without prior consent of the landlords.
The suit was decreed on 4 October 1978 directing the
Defendants/Tenants to vacate the suit property. When the decree was
put in execution and warrant of possession was issued, the bailiff
returned the warrant with a report that execution of decree was
obstructed by 80 obstructionists claiming possession in respect of
various constructed portions in the suit property. The decree holders
took out obstructionist notice which came to be made absolute and the
order of the Executing Court was upheld by the Appellate Bench. In the
above facts, this Court considered the right of occupants of structures
constructed on the leased land in respect of which decree of eviction
was passed against the original lessee. This Court referred to judgment
of Division Bench in S.R. Shetty vs. Phirozeshah Nusserwanji
Colabawala decided on 21 November 1962 in which the question of
right of obstructionists in respect of the structures put up by the
tenants of the plot was considered. This Court held in para-17 of the
judgment as under:
17. As far back as on 21st November, 1962, a Division Bench of
this Court in C.R.Equity Text AA. No. 1511 of 1960 of S.R. Shetty
vs. Phirozeshah Nusserwanji Colabawala and another was
considering the question of the right of the obstructionists in
respect of the structures put up by the tenant of the plot
belonging to landlord owner of the plot. Whatever right the
obstructionists may have against the owner of the structures, it
was held that it was almost impossible to accept the suggestion
that after the structure is built and the sub-tenant has been
inducted by the tenant, such a sub-tenant also becomes the
subtenant of the land belonging to the landlord. The sub-tenant
of the structure erected by the tenant had only right to occupy
the said structure without any right to occupy the land on which
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where it would be difficult to decide as to which subtenant of
which structure had right to occupy the particular portion of the
plot of land in dispute which was leased by the landlord to the
tenant who had erected the super structure may be a multi
storeyed structure. This view expressed by the Division Bench in
S.R. Shetty vs. Phirozeshah Nusserwanji Colabawala, was
considered in a series of judgments rendered by this Court while
dealing with the right of the obstructionists in the proceedings
under the Rent Act.
17) In Ramkrishna Girishchandra Dode, this Court also relied upon
judgment in Goregaon Malayalee Samaj vs. M/s. Popatlal Prabhudas
and Sons wherein again the same issue was decided and this Court held
in para-21 as under:
21. In Goregaon Malayalee Samaj vs. M/s. Popatlal Prabhudas
and Sons, 1987 Mah.Rent Control Journal 701, A.C. Agarwal, J.
had occasion to consider the same question. Originally the
tenancy was in respect of the land. The tenant of the land
constructed structures thereon and inducted third parties. The
question arose whether such a third party could become
subtenant of the landlord in respect of the land beneath the
structure and claim protection of the provisions of section 15A
of the Rent Act. It was held that persons so inducted on the
structures would be the tenants in respect of the super structure
on the land only. Their status vis-a-vis the land is necessarily
that of a licensee only and not any higher status. Where a
decree is sought to be executed in respect of land which was
subject matter of the original lease, the status of the tenants of
the structure on the land was nothing more than that of mere
licensees. The right of the occupants of the structures on
the land was nothing more than that of a mere licensee.
Such licence must necessarily come to an end when the
landlord obtains a decree for eviction of his tenant and the
occupants have got to be evicted from the land which could
not be done unless they are also evicted from the structures
which stand on the land. All subsidiary interests that would
have been created by the original lessee of the land pursuant to
the lease deed must necessarily come to an end unless the
occupant was otherwise protected by the provisions of the Rent
Act. On the question as to whether such an occupant would
be protected by the provisions of section 15A of the Rent
Act, this Court gave the answer in the negative.
18) This Court further held in para-23 and 24 as under :
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23. I must now make a reference to the judgment of the Apex
Court which sets at rest the entire controversy and to which a
reference has been made in some of the decisions of this Court
referred to above. In Jamnadas Dharamdas vs. Dr. J. Josheph,
AIR 1980 SC 1605, the Apex Court considered identical situation
where the obstructionists were claiming protection after the
tenant had suffered a decree for eviction under section 12(3) of
the Rent Act. On consideration of some of its earlier
decisions, Apex Court held in para 18 of the judgment at
page 1610 that the landlord was entitled to claim relief of
possession of his land and in effect the decree for
possession of the land would mean that the land should be
delivered to him without structures. The tenant had
committed defaults in payment of rent. Reference was made by
the Apex Court to the decision of this Court in Ramchandra
Raghunath Shirgaonkar vs. Vishnu Balaji Hindalekar, AIR
1920 Bom. 87 where it was held that ordinary rule of law is that
tenant must give up vacant possession of the land demised
at the end of the term and that if he builds on the land of
the tenancy, he builds at his own risks. At the end of the
term, he can take away his building but if he leaves it there
it becomes the landlord’s property. A reference was also
made to another decision on this Court in Khimjee Thakersee
vs. Pioneer Fibre Co. Ltd., AIR 1941 Bom. 337 where it was held
that on determination of the lease the lessees were required to
deliver over possession of the demised premises to the lessors
and the lessees were entitled to remove the structures which
they might have erected during the continuance of the tenancy.
In para 21, the Apex Court concluded that the plaintiff was
entitled to ask for relief as to the possession of the land and he
was also entitled to ask for demolition of the structures and for
grant of vacant possession of the plots.
24. In the light of the above legal position, I will consider the
contentions raised by the petitioners. The first contention is
that, in the facts of this case, since the lessee of the plot Kelkar
was permitted to put up or erect structures, the licensees of the
structures inducted by the lessee Kelkar were also entitled to
become the tenants of the land underneath the structures.
Reliance was placed on the observations of a learned Single
Judge Bhasme, J. in Mangharam Chubarmal vs. B.C. Patel, 1971
Mh.L.J. 369=73 BLR 140 where it was held that in a suit against
the tenant, if other persons are joined on the allegation that
they are sub-tenants and if eviction is sought only on the
grounds which are personal to the tenant (sections 13(1)(a), (b),
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(c), (d) and (e) of the Rent Act) then decree in ejectment against
him will result in conferring the direct tenancy rights on the
lawful sub tenant. It was further held that if sub-tenants are not
impleaded in such a suit, then the landlord, after obtaining the
decree against the tenant, will have to file a fresh suit against
the subtenants who had by then became his direct tenant by
virtue of section 14 of the Rent Act. This view expressed by
Bhasme, J., need not detain me any longer since it is contrary to
the earlier Division Bench decision of this Court in S.R. Shetty’s
case (C.R.A. No. 1511 of 1960 decided on 21st November, 1962).
The view expressed by Bhasme J. has also been dissented by P.B.
Sawant, J. in Damji Nansi’s case, 1979 BCR 670 by Sharad
Manohar, J. in Dinkar Vaidya’s case, AIR 1981 Bom. 190 by S.J.
Deshpande, J. in Mrs. Suman Damani’s case 1986 Mah. R.C. J.
376 and by A.C. Agarwal, J. in Goregaon Malayalee Samaj’s case
1987 Mah.R.C. J. 701. More over in view of the decision of the
Apex Court in Jamnadas Dharamdas vs. Dr. J. Joseph, AIR 1980
SC 1605, with respect it is not possible for me to agree with the
view expressed by Bhasme, J. that the sub-tenants or licensees
of the structures inducted in the structures by the lessee of the
plot will still be entitled to claim protection of the provisions of
section 14 or 15-A of the Rent Act despite the decree for
eviction being passed against the tenants under the provisions
of the Rent Act. There is thus no substance in the first
contention advanced on behalf of the obstructionists.
19) Thus it is settled position of law as expounded by the Apex
Court in Jamnadas Dharamdas (supra) that obstructionist claiming
protection after suffering of decree of eviction by a tenant cannot
defeat landlord’s entitlement to claim possession of his land and
if any structure is built on the land, such structure is at the risk of
the tenant and at the end of the term, the land must be returned
to the landlord and persons inducted in such structures cannot
oppose execution of the decree. Thus, if Defendant-M/s. Bhide
Textile Industry has inducted Applicants/their predecessor-in-title in
the constructed portion of the suit property during pendency of the
suit, the tenant has done so at its own risk and Applicants/predecessor-
in-title have occupied the structures at their own risk. Their status
vis-a-vis the land is necessarily that of lessee and they cannot
claim any higher status. Once the tenant is directed to vacate, his
licensee must also vacate the structures on the land. This position
of law is repeatedly expounded in various other judgments relied upon
by Mr. Jahagirdar.
(emphasis and underlining added)
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63) In Virji Nathuram (supra) the Single Judge of this Court has held
in para-9 of the judgment as under:
9. The argument is highly attractive. Though this argument had not
been advanced in such terms in the Court below, since it is based on the
facts already on record and it is raised in the form of a legal
proposition, I have heard Mr. Walavalkar at length on the same. In my
opinion, though, as mentioned above, the argument is highly
attractive, it ignores one basic ingredient in the dual relationship which
has come into existence as a result of the lease deed executed by the
respondent in favour of the origin al lessee and the law laid down by
the long line of decisions to which I have already made reference
earlier. The original lessee has naturally got to be evicted pursuant to
the decree passed in the suit preferred by the respondent. The original
lessee has to be evicted from the entire land which was the subject-
matter of the lease which has now been determined. Undoubtedly, as
has been pointed out repeatedly, the original lease has permitted
the erection of a superstructure on the land and the induction of
third parties in the said superstructure. The persons so inducted
were no doubt the tenants of the superstructure which was
erected. The status of the persons who were inducted, though
legally, in the superstructure vis-a-vis the land is necessarily that
of licensees and not any other higher status. At present the decree
is being sought to be executed in respect of the land which was the
subject-matter of the original lease and upon which the status of the
petitioners is nothing more than that of licensees. The correct legal
position is that on the determination of the lease or other
interests which are created on the land including the
superstructure, the interest, if it can be so called, of the licensees
has necessarily to come to an end. The decree which is being
executed by the respondent cannot be properly executed unless the
status of the petitioners as licensees on the land also comes to an end.
It is in this sense that the petitioners have got to be evicted from the
suit land. This cannot be done unless naturally they are also evicted
from the structure which is standing on the land in question.
Therefore, in execution of the decree by the respondent
inexorably the possession of the petitioners of the land as
licensees must also come to an end. The petitioners cannot remain
in possession of the structure unless they have a right to remain in
possession of the land as licensees, which they are not entitled to do in
view of the decree which has been validly passed against the lessee. The
petitioners, therefore, cannot resist the execution of the decree which
had been undoubtedly passed validly against the original lessee. All the
subsidiary interests which were created, even if legal, by the original
lessee pursuant to the lease deed must necessarily come to an end
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unless otherwise they are protected under the provisions of the Bombay
Rent Act. The possession of a licensee in the year 1964 when the suit
was filed could not survive the determination of the lease in respect of
the land on which the licence was created. It is thus that the petitioners
do not enjoy any protection even in respect of the structure in which
they have been inducted legally pursuant to the term of the lease.
(emphasis added)
64) In Virji Nathuram this Court has recognised the principle
that mere permission to erect a superstructure on the land, and
induction of the parties in the superstructure does not create a right in
favour of occupier of such superstructure to obstruct execution of
decree.
65) In C. Albert Morris Versus. K. Chandrasekaran and
others25 the Apex Court has held in para-40 of the judgment as under :
40. We have already referred to the arguments advanced by both the
parties in regard to the nature of tenancy and the statutory protection.
It is abundantly clear from the recitals in the plaint, the Schedule to the
notice and to the plaint and also of the lease deed that what was “leased
out” was only a vacant site to put up a petrol bunk with accessory
constructions thereon. The mention of a small shed in the current
lease undoubtedly belonged to the tenant himself and, therefore,
the building put up by the tenant situated in the vacant site
belonging to the landlord cannot be said to be the building of the
landlord in order to attract the statutory protection of the Rent
Control Act. This issue is, therefore, answered against the tenant.
(emphasis added)
66) Thus, in Ramkrishna Girishchandra Dode, Jamnadas
Dharamdas, C. Albert Morris, Sanjay Ramchandra Parab and Virji
Nathuram it is repeatedly held that a person, inducted by the lessee in
structure constructed by him as per permission granted under the lease,
25 2006 1 SCC 228
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is not entitled to claim protection of possession of structures
constructed by the lessee and that he must vacate the structure when
decree against the lessee is executed.
67) In the present case, the obstructionists/their predecessors
were apparently inducted by Moogatlal who was operating a petrol pump
in the demised land. In the 3 galas that he constructed on the land, he
inducted Tare’s in 2 galas and Halimabai Madraswala in 1 gala. Each of
the Indentures mandated Moogatlal to deliver possession of demised
land in the same condition as it stood at the time of creation of lease.
Even in clause 1(j) of the last Indenture dated 6 March 1959, the three
lessees were under obligation to handover possession of vacant land by
removal of structures standing thereon. Thus the case does not involve
induction of Obstructionist by the lessee who were tenants in any
premises. Therefore Section 15 and 15A would have no application in
this case. The induction is by the lessee’s in structure with obligation to
demolish the structures at the expiry of the lease. In that view of the
matter provisions of Sections 15 or 15A of the Bombay Rent Act would
have no application and it cannot be concluded that Obstructionist
became lawful subtenant of the structure.
68) It is sought to be contended on behalf of Respondent Nos.4
to 6 that the last Indenture dated 6 March 1959 was not only in respect
of the land but also in respect of the appurtenances and that the term
‘appurtenances’ also included constructed structures. It is therefore
sought to be suggested that the lease was in respect of constructed
structures as well. Reliance is placed on judgment of the Apex Court in
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D.G. Gose and Co Pvt. Ltd. (supra). The judgment is rendered by the
Apex Court while interpreting taxation law in the State of Kerala and in
that context, the Apex Court has held that if some land is included as
appurtenances to a building, it forms integral part of the building for the
purpose of application of the taxation statute. In my view, the judgment
cannot be relied on in support of an abstract proposition that when lease
is granted in respect of open land alongwith the appurtenances, the lease
is also in respect of the constructed structures or that the lessor has
accepted structure occupiers to be sub-tenants. The Schedule to the
Indenture dated 6 March 1959 clearly envisaged creation of lease only in
respect of vacant land. In fact, there was specific prohibition under
Clause-1(h) of the Indenture from assigning, under letting, or parting
with possession of the demised premises or any building or structure
without the consent of the landlord. As observed above, Clause-1(h)
imposes obligation on the tenants to handover possession of the
demised land after removal of the structures and in the same condition
as the same was let out to Moogatlal initially. The Indenture must be
read as a whole. When the lessee had obligation to remove the structures
at the end of the lease, it cannot be contended that the lessor had any
intention of creating lease in respect of constructed structures, that too
in favour of the obstructionists.
69) In my view, therefore the ratio of the judgment of this Court
in Sanjay Ramchandra Parab would squarely apply to the present case.
Inductees in the structures constructed by a tenant do not automatically
become the tenants/sub-tenants of the lessor. They are merely licensees
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of the inductor/lessee. The alleged license arrangement between the
tenant/lessee and his inductee does not bind the lessor and the inductees
have a right to occupy the structure only during currency of the lease.
The moment the lessee is required to vacate the land by removing the
structures, the right of the inductee to occupy the structure
automatically comes to an end. SectionS 15 and 15A of the Bombay Rent
Act cannot apply to a situation where tenant has constructed a structure
on open land which is demised to him. When the lessor permits
construction of structure with obligation for removal thereof at the end
of tenure of the lease, the violation of such obligation by the lessee (in
not removing the structure at the end of the lease) does not create a
right in favour of lessee’s inductees to occupy the structures forever.
There can be no lawful subtenancy in such case.
70) In leases comprising of vacant land, the lessor may permit
the lessee to put up construction with obligation to remove the same at
the end of tenure of the lease. In such a case, the lessee is permitted to
enjoy rent/license fees from inductees in structures constructed by him.
Those inductees can occupy the structures only till their inductor/lessee
has the right to occupy the land. The moment lessee’s right to occupy
the land terminates, inductees right to occupy the structure also gets
terminated. It is incomprehensible that a lessee can be permitted to
create a contractual relationship between the lessor and third parties. In
the present case, the Trial Court has rightly held that there is no privity
of contract between the Plaintiffs and the Obstructionists. The Appellate
Court has thus egregiously erred in attempting to establish relationship
of lawful sub-tenancy between obstructionists and Plaintiffs.
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71) Reliance by Respondent Nos.4 to 6 on judgment of the Apex
Court in Mahabir Prasad (supra) does not cut any ice. The case before
the Apex Court involved subletting of tenanted premises by the tenant to
sub-tenants. The issue for consideration was whether creation of such
sub-tenancies was valid. In the facts of that case, the Apex Court held
that subletting by a tenant with consent in writing of the landlord does
not become unlawful. In the facts of that case, it was found that there
was consent of the landlord for creation of sub-tenancies. The judgment
has no application to the facts of the present case, where the lessees
were not the tenants of any structures and the induction by them of
obstructionists in the structures was without lessor’s consent.
72) Respondent Nos.4 to 6 have relied upon judgment of the
Apex Court in South Asia Industries Private Ltd. (supra) in support of
the contention that sub-tenant is a necessary party where his induction
is with the consent of the landlord. The case again involved suit for
eviction in respect of the premises let out to a tenant. The case did not
involve the issue of creation of lease in respect of vacant land and right
of third parties to occupy the structure constructed by the tenant. The
judgment therefore would have no application to the facts of the present
case.
73) Respondent Nos.4 to 6 have also relied upon judgment of
the Apex Court in Bhatia Coopeative Housing Society Limited Versus.
D.C. Patel26 in support of the contention that the structure constructed
26 1952 2 SCC 355
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by the lessee becomes part of the lease. However, the judgment is
rendered in the light of the peculiar facts of that case where the lease
itself was found to be in respect of the land, as well as in respect of the
building standing thereon. The structure was constructed by the lessee
for use and benefit by the lessor. In case before the Apex Court, an MOU
was incorporated which required the tenant to construct a building for
the benefit of the lessor. After completion of construction of the
building, the Indenture of lease was executed not only in respect of the
land but also in respect of the building. The judgment in Bhatia CHSL
(supra) is thus rendered in the light of peculiar facts of that case where
the lease was also in respect of the building. In the present case, there is
nothing on record to indicate that any leasehold rights were created in
favour of the lessees in respect of the constructed structures on the
demised land. The structures are not constructed by the lessees for
benefit of the lessor. On the other hand, the lessees were under
obligation to remove all constructions put up on the demised land and to
deliver possession of vacant land to the landlord.
74) Mr. Savant has relied upon judgment of the Apex Court in
Jamnadas Dharamdas in support of his contention that the decree is not
binding on obstructionists, who are sub-tenants. It is contended by Mr.
Savant that both the judgments in Jamnadas Dharamdas and Sanjay
Ramchandra Parab involved filing of eviction suits under the Rent Act,
whereas the suit was filed by Plaintiffs in the present case under Section
41 of the PSCC Act. Firstly, the judgment of the Apex Court in Jamnadas
Dharamdas has been taken into consideration by this Court in Sanjay
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Ramchandra Parab. Secondly, mere filing of suits for ejectment under
the Rent Act would not make the judgment in Jamnadas Dharamdas or
in Sanjay Ramchandra Parab inapplicable to the facts of the present
case. The present suit was filed for recovery of possession of vacant land
by removal of the structures and therefore following observations of the
Apex Court in para-18 of the judgment in Jamnadas Dharamdas would
be apt in the present case:
18. The decisions referred to above will show that that the
plaintiff/ landlord of the land is entitled to claim the relief for
possession of his land and in effect the decree for possession of
the land would mean that the land should be delivered to him
without the structures. Apart from the relief under the lease deed, the
plaintiff is entitled to succeed as he has established that there was
default of payment under the provisions of the Bombay Rent Act. The
jurisdiction of the Small Cause Court to grant an effective decree for
possession of the land cannot be denied. Equally untenable is the
contention of the respondent that as the plaintiff has sought two reliefs
one under the Bombay Rent Act and another under the Contract, the
entire plaint must be rejected. As we have already observed so far as the
relief of possession of the premises i.e. the land, is concerned, it is
exclusively within the jurisdiction of the Small Cause Court. In asking
for the relief for possession of the land, the plaintiff is entitled to
incidental and consequential reliefs such as for taking possession
of the plot without the structures. The prayer in the plaint asking for
possession of the land including the structures would not take the suit
out of the competence of the Small Cause Court. In this view it is not
necessary for us to go into the question as to whether the terms in the
contract regarding the forfeiture can be enforced by the Small Cause
Court. It is sufficient for the purpose of this suit to hold that the
plaintiff is entitled to seek for possession of the land which is the
premises in the suit, and in getting possession of the land, he is
entitled to ask for possession of the land without any superstructures.
In this connection reference may be made to the nature of the relief
which the plaintiff is entitled to. In Ramchandra Raghunath
Shirgaonkar v. Vishnu Balaji Hindalekar Z it was held that the
ordinary rule of law is that the tenant must give up vacant
possession of the land demised at the end of the term and that if
he builds on the land of the tenancy he builds at his own risk. At
the end of the term he can take away his building but if he leaves
it there, it becomes the landlord’s property. The court further held
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that the tenant who had been in possession of land for a large number
of years and built a costly and substantial house on the land of the
tenancy with the knowledge of the landlord, is entitled to some
compensation.
(emphasis added)
75) Reliance by Respondent Nos.4 to 6 on judgment of the Apex
Court in Habibunnisa Begum is also misplaced as the judgment is on the
issue of single indivisible contract of tenancy. In case before the Apex
Court, the suit premises were leased out by a single lease deed to the
Respondent and part thereof was acquired for construction of road,
resulting in premises being separated by such road. The suit for
ejectment was decreed but the High Court partly allowed the tenant’s
revision directing partial ejectment. It is in the context of these peculiar
facts that the Apex Court held that the Court did not have power to order
partial ejectment by splitting single indivisible tenancy. The present case
does not involve the issue of surrender of part of tenancy by few tenants.
All the surviving tenants have lawfully surrendered the tenancy by
entering into consent terms. The case therefore does not involve the
issue of splitting of single tenancy into multiple parts. In fact the
Appellate Court erroneously held that the tenancy was joint in the
names of 15 lessees and that the surrender was only by few lessees. The
argument of impermissibility to split single indivisible tenancy into parts
is thus premised on the erroneous assumption on the part of the
Appellate Court.
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CONCLUSIONS
76) Considering the overall conspectus of the case, I am of the
view that the Appellate Court has grossly erred in reversing the decision
of the Trial Court by erroneously assuming that ejectment decree was
invalid or inexecutable. The Appellate Court has based its judgment
mainly on the issue of the 15 tenants not surrendering the tenancy
rights. The assumption on the part of the Appellate Court about
subsistence of tenancy rights in the name of the 15 tenants itself is
factually incorrect. Since the judgment is mainly based on erroneous
assumption of non-surrendering of tenancy by all tenants, the judgment
is unsustainable and liable to be set aside. As observed above, most of
the findings recorded by the Appellate Court revolve around its
erroneous assumption that the third Indenture dated 6 March 1959
created tenancy in favour of 15 legal heirs of Moogatlal. The Appellate
Court has very sketchily held that the Obstructionists have become
lawful subtenants, which finding is also found to be erroneous. The
finding of the Trial Court about absence of any independent right in
favour of the obstructionists to occupy the premises has been
erroneously set aside by the Appellate Court. The obstructionists have
thoroughly failed to establish any independent right to occupy the
structures constructed on the demised land. They were inducted by the
lessee-Moogatlal, who had obligation to hand back possession of
demised land by removal of structures. His three children, in whose
favour only the last lease was executed, and who permitted the inductees
of Moogatlal to continue to occupy the structures, also had the
obligation to remove the structures and hand back possession of vacant
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land. Therefore, the occupants of the structures must walk out with
surrender of demised land by the lessees. Resultantly, the impugned
judgment and order passed by the Appellate Court is liable to be set
aside and the judgment and order passed by the Trial Court deserves to
be upheld.
77) I accordingly proceed to pass the following order:
(i) Judgment and order dated 4 May 2022 passed by the
Appellate Bench of the Small Causes Court in Appeal
No.27 of 2019 and Appeal No. 28 of 2019 is set aside.
(ii) Judgment and order dated 3 November 2018 passed by
the Court of Small Causes at Mumbai in
Obstructionist Notice No.15 of 2006 is confirmed.
78) Civil Revision Applications are allowed in the above terms.
Considering the facts and circumstances of the case, there shall be no
order as to costs.
[SANDEEP V. MARNE, J.]
79) After the judgment is pronounced, the learned counsel
appearing for the Respondents-Obstructionists, prays for stay of the
judgment for a period of eight weeks. The prayer is opposed by the
learned counsel appearing for the Applicants. Considering the nature of
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findings recorded in the judgment, I am not inclined to stay the
judgment. The request for stay is accordingly rejected.
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2026.04.06
[SANDEEP V. MARNE, J.]
20:54:46
+0530
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