Second Appeal No. 60 of 1996

16th April, 2008

Petitioner Counsel: Mr. S. P. DHARMADHIKARI
Respondent Counsel: Mr. R. S. PARSODKAR

JUDGMENT

JUDGMENT:- This is a second appeal by original defendant no.1. The parties shall hereinafter be referred to as plaintiffs and defendants.

2. The facts giving rise to the appeal are as follows -

The plaintiffs are occupying the suit premises as tenants. They have paid rent up to month of December, 1990. Plaintiff no.2 is the son of plaintiff no.1. Plaintiff no.1 alone is residing in the suit house, since plaintiff no.2, who is an engineer, is in service and is residing at Bhandara. The suit tenement consisted of three rooms. Defendant no.2, who is the landlord of the plaintiffs, wanted to evict the plaintiffs from the suit premises. He, therefore, had applied to the Rent Controller for grant of permission to serve a notice of termination of tenancy of plaintiffs. The Rent Controller had rejected the application. A dispute had arisen between the plaintiffs and defendant no.2 with regard to the egress and ingress. The plaintiff was, therefore, required to file a suit against defendant no.2 for injunction. In the said suit, there was a compromise and it was agreed that defendant no.2 would provide an access at point A and B shown in the map. Defendant no.1 is a builder and he is making construction by demolishing the building which is known as Khandekar-Wada. The plaintiff contended that there was an oral agreement between the plaintiffs and defendant no.2 in respect of the suit premises. Defendant no.2 had agreed to sell the said property to plaintiff for sum of Rs.75,000/- and they even paid Rs.5,000/- towards the earnest. Defendant no.2, however, resiled from the said contract. Defendant no.1 being a builder was always troubling the plaintiffs and causing obstruction to the use of the premises. When the plaintiffs were absent for a day or two in 1990, defendant no.1 with the help of defendant no.2, tried to demolish the suit premises. Entire belongings of the plaintiffs were misappropriated. It is alleged that during the pendency of the suit the defendant dispossessed the plaintiffs. The plaintiffs, therefore, amended the plaint and sought restoration of possession, besides declaration and injunction that defendants cannot evict the plaintiffs without obtaining permission from Rent Controller and demolish the premises.

3. Defendant no.1 resisted the suit by filing a written statement. The defendant denied that the plaintiffs are the tenants in the suit premises. According to the defendant, the plaintiffs have surrendered the possession and tenancy and the work of demolition of the premises and construction was started thereafter. The defendant denies that there was an agreement of sale between the plaintiffs and defendant no.2. It is contended that the house was dismantled only after it was found that the persons in occupation had left the premises. Defendant no.2 has raised an identical plea.

4. The learned Judge of the Trial Court found that the plaintiffs are the tenants of the suit property. The plaintiffs had not surrendered the tenancy rights. The suit property was illegally demolished by the defendants and the plaintiffs were entitled for injunction, declaration and possession. Holding so, the learned Judge decreed the suit.

5. Defendant no.1's appeal came to be dismissed in the Appellate Court. Defendant no.1 has, therefore, preferred this second appeal.

6. This second appeal was admitted by Kulkarni, J. on the following substantial question of law.

"Having heard learned advocates on both the sides, it appears that prima facie involvement of certain substantial questions of law pertaining to the status of the plaintiff as a tenant, the landlord's evidence as to the area in occupation during the tenure of earlier tenancy, the basis for decreeing the claim being appropriately available on the strength of Section 6 of the Specific Relief Act or on the strength of the plea that the earlier premises were the tenanted premises, the exact area which was in actual occupation during the tenure of the earlier tenancy and lastly marshalling of the evidence and the recording of the findings as has been done by the Courts below in drawing the findings of facts on the mixed questions of facts and law tainted with illegality as not to allow the bar of concurrent findings coming in the way of the appellant in reagitating those question in this second appeal, are some of the substantial questions of law which appeared to have been raised and inspite of lengthy arguments, there seems to be submissions which are still not finished to conclude this aspect. Suffice it to say for the purpose of the present stage of admission of appeal, the above broad aspects do raise substantial question of law and appeal deserves to be admitted for final hearing."

7. I have heard the learned counsel for the appellant and the respondents.

8. The undisputed fact is that the plaintiffs were occupying the premises as tenant. The defendants in their written statement also admit so. I reproduce here the averments made in the written statement of defendant no.1.

"It is submitted that the defendant no.1 dismantled the house after finding that the premises was not in possession of any person or the plaintiffs. It is submitted that the question of obtaining the permission to terminate the tenancy does not arise as the plaintiffs had themselves left the premises and surrendered the tenancy."

9. Defendant no.2 also admits as follows -

"As a matter of fact, the plaintiffs had surrendered the tenancy and had handed over the possession much before the institution of the suit."

10. The material question is whether the plaintiffs surrendered the tenancy as alleged. From the above statement of the defendants, it seems that they alleged the surrender because, according to them, the plaintiffs have left the premises and the premises are lying vacant. First of all, the theory of surrender holds no water due to the fact that the defendants do not make it clear as to on which date the plaintiffs handed over the vacant possession to them and declared their intention to abandon their rights as tenants and that, there was any new contract. A surrender is always an intervivos act. It cannot be unilateral. The landlord must come to know that the tenant has given-up the possession and the rights, at least, in an express surrender. There is no pleading whether the surrender was express or implied. Since there is no pleading as to whether the surrender was express or implied, the defendants were debarred from tendering any evidence to prove either. Clause (e) of Section 111 of the Transfer of Property Act, 1882 speaks of express surrender while (f) speaks of implied. This question, therefore, will be a mixed question of facts and law. It was for this reason that a clear pleading as to the nature of surrender was necessary. That having been left vague, no amount of evidence is admissible. Assuming that the case is one of implied surrender, since that seems to be urged before the courts below, we have to see if there is even implied surrender. On the basis of pleading itself, I would reject the argument of implied surrender leaving aside the evidence. In case of implied surrender under Section 111(f) of the Transfer of Property Act, what is necessary is that a new relationship must come into existence. I would quote here the illustration given under Section 111 of the Transfer of Property Act.

"Illustration

A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon."

This illustration makes it very clear that when a lessee accepts new lease during continuance of the old, there is implied surrender of the original lease. It is not even pleaded by the defendants that any other new relationship, such as mortgagor - mortgagee, licensor - licensee came into existence or there was any new contract of lease. What is alleged is that the plaintiffs have vacated the premises and have gone to live elsewhere. This does not and cannot amount to implied surrender at all. Since there is no pleading of coming into existence of new relationship or new contract of lease, the case does not at all fall under clause (f) of Section 111 of the Transfer of Property Act. Although the courts below have not considered the case in this perspective, their finding that there was no implied surrender was factually correct.

11. The next question that needs consideration is whether the courts below have rightly held that the suit falls under Section 6 of the Specific Relief Act or not. Initially, the plaintiffs had filed a suit for declaration that the plaintiffs are tenants and they cannot be evicted without Rent Controller's permission and also injunction to restrain from demolishing demised premises. The plaintiffs during pendency of the suit amended the plaint and claimed that the defendants in their absence demolished the portion of the suit premises and dispossessed the plaintiffs. As a result of dispossession, during pendency of suit, the plaintiffs have sought restoration of possession. The contention of defendants that the suit cannot fall under Section 6 of the Specific Relief Act, cannot be accepted simply because the other relief of declaration and injunction is sought. The need to seek possession has arisen only because of dispossession during tendency of suit. It is found that there was no surrender of tenancy. It must, therefore, be assumed that the plaintiffs were in possession of the demised premises and were dispossessed without following due process of law. If, therefore, the plaintiffs are dispossessed during pendency of the suit and when injunction was sought, they can certainly, by amending the plaint, sue for possession on the basis of previous possession. The findings of the courts below that the relief of possession could be granted under Section 6 of the Specific Relief Act was proper. There is, therefore, no substance in the appeal. The questions of law are answered accordingly. The appeal is dismissed with costs.

Appeal dismissed.