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Judgment
Heard Shri A.S. Jaiswal, learned Senior Counsel with Mrs.
R. Bajaj, learned Counsel for petitioners - tenant and Shri R. Joshi, learned Counsel for respondent no.1 - landlord.
Civil Suit No. 97/1999 filed by landlord before the Small Causes Court at Nagpur under Section 106 of Transfer of Property Act came to be decreed by 2nd Additional Small Causes Court, Nagpur on 22.04.2008. Against that adjudication, petitioners filed an appeal under Section 26A of the Provincial Small Causes Court Act, 1887 in the Court of District Judge-15, Nagpur. That Court dismissed the appeal on 19.07.2011.
Thereafter present Writ Petition came to be filed. It appears that on 09.07.2012, effort was made to mediate and after receipt of failure report, matter remained pending till 23.09.2014, when it was Admitted for final hearing. There are no interim orders granted by this Court.
Shri Jaiswal, learned Senior Counsel submits that the tenanted premises form part of agricultural land and hence, provisions of Bombay Tenancy and Agricultural Land (Vidarbha Region) Act, 1958 apply. Tenancy therefore, ought to have been determined by taking recourse to the provisions contained in that Act, and by approaching the Tahsildar under Section 36 of said enactment. In view of the provisions of Sections 124 and 125 of that Act, the Small Causes Court does not possess jurisdiction.
Without prejudice, it is added that if provisions of Tenancy Act are not attracted, the provisions of Maharashtra Rent Control Act, 1999 shall squarely apply. Tenancy therefore, could have been determined in circumstances stipulated in Section 15 of Section 16 thereof and as those grounds do not exist, the decree as passed is without jurisdiction.
It is further submitted that in any case the tenancy is for a motor repairs workshop i.e. manufacturing purpose and hence, the tenancy could not have been determined except by giving 6 months notice expiring with the period of tenancy. Here the notice is only of 15 days duration and hence, bad in law.
Lastly, it is pointed out that the respondent / plaintiff himself has accepted defendant no.2 as a tenant on one occasion and Courts below have not adjudicated upon that controversy at all.
That without deciding who is the real tenant, the suit could not have been decreed.
Shri Joshi, learned counsel appearing for respondent tenant has submitted that the tenancy admittedly is not for agricultural purpose, and therefore, Bombay Tenancy and Agricultural Land Act, has no application. The tenancy is also monthly and as such there is no question of issuing a notice of 6 months duration. The defendant no.2 has claimed to be a tenant through its partner and said person is defendant no.1. Partnership Firm, though registered is not a legal entity and under Civil Procedure Code can be sued through its partner. Accordingly the tenant/defendant no.1 and Firm formed by him through him as its partner were defendants and no objection to the form of suit was taken by the trial Court. Inviting attention to Section 2 [2] of the Maharashtra Rent Control Act, read with its Schedule-I, he submits that the provisions of Maharashtra Rent Control Act, 1999 are not applicable to Wadi area, which is outside the limits of Nagpur Municipal Corporation. According to him, therefore, tenancy is regulated only by the provisions of Transfer of Property Act . He therefore, prays for dismissal of the writ petition.
After hearing the respective Counsel and perusal of records with their assistance, it is seen that the tenancy is not for agricultural purposes and it was motor repairs workshop. It is not the case of defendants that the basic tenancy was for agricultural purposes and they have changed the user and started workshop. In this situation, when basic tenancy is for non-agricultural purposes, contention that provisions of Tenancy Act apply is, erroneous and rightly found to be so by both the Courts below.
In so far as the application of Maharashtra Rent Control Act, 1999 is concerned, admittedly the premises are situated outside the Municipal limits of Nagpur Municipal Corporation and therefore, said Act does not apply to it. The tenancy therefore is governed by Section 106 of the Transfer of Property Act.
Defendants never objected to form of suit or to joinder of defendant no.2, as party defendant. Defendant no.1 is a partner of defendant no.2, which is a registered Firm. Defendant no.2 has also been sued through defendant no.1.
It is a settled position that a partnership firm though registered does not constitute a legal person. In these facts, both the Courts below have rightly rejected the contention of present petitioners. Petitioners cannot be permitted to take advantage of their own act and attempt to cause prejudice to landlord. The contention that the Courts below have not determined real tenant therefore, is, erroneous and misconceived.
Section 106 of the Transfer of Property Act operates when there is any contract to the contrary. Presumption of tenancy on year to year basis in case of manufacturing activity is subject to contract to the contrary. Here, rent receipts are monthly and the contract of tenancy is also monthly. The contention that therefore, the petitioners were entitled to 6 months notice before termination of their tenancy is not supported by any material on record. On the contrary, the plaintiff has given a valid notice under Section 106 of the Transfer of Property Act and brought an end to the tenancy.
Consequently, I do not find any error in appreciation of evidence and law by the Courts below. The concurrent findings reached by them are therefore, maintained. In the result, Writ Petition fails and is accordingly dismissed. Rule discharged. No costs.