AI Structured Summary
Not yet generated for this judgment
Judgment
D.G. Deshpande, J.—Heard Advocate Shri Sarnant for the petitioners. Nobody is appearing for the respondents.
The petitioners are the alleged tenants of the suit premises. A civil suit was filed by the respondents wherein the petitioners raised a plea of tenancy, therefore, the matter was referred to the Additional Tahasildar Barshi. He gave findings in favour of the tenants. The findings were upheld by the Appellate Court in the absence of appellants/landlords. The landlords, therefore, challenged this ex parte decision before the Maharashtra Revenue Tribunal (herein after referred to as the M.R.T.) by filing a revision and the said revision was allowed. The tenants, therefore, came to the High Court, and the High Court remanded the matter to the Sub-Divisional Officer who had decided the matter ex parte.
On remand the Sub-Divisional Officer dismissed the appeal and held that the respondents were the tenants vide his order dated 31st December, 1982. The landlords, therefore, again moved to the M.R.T. in revision and the M.R.T. held that the present petitioners are not the tenants. Hence this petition.
I heard Advocate G.R. Samant at length. He took me through the records of the Lower Court at the time of hearing. The petitioners are claiming their tenancy rights on the basis of lease deed, which is on record at page 37 of the Trial Court. This lease deed is dated 8.11.1956. It is in Marathi and executed by the petitioners in favour of landlord Dhondi Kanu Bhalke. The entire case of the tenants is based on this document coupled with the fact of his possession on the date of filing of the civil suit.
The M.R.T. rejected the claim and contentions of the tenants on the ground that this lease deed was not executed by lessor. Mr. Samant, therefore, contended that, firstly, the provisions of Transfer of Property Act were not applicable to the leases or documents created under the Tenancy Act or to leases for agricultural purposes. Secondly, he relied upon a judgment of the Bombay High Court in Jagannath Balwant Shedge v. The Maharashtra Sugar Mitts Ltd., 1957 (60) Bom. L.R. 782 in support of his contentions.
This judgment of the Division Bench was relied upon by Mr. Samant to show that even if a lease deed is not executed by lessor, the same could be accepted and relied upon by the Court, and consequently the lease deed relied upon by the present petitioners of 1956 should have been accepted by the M.R.T. in favour of the petitioners. However, in order to test this submission, it is necessary to find out the facts of the aforesaid reported case of Jagannath v. Maharashtra Sugar Mitts.
In that matter the Maharashtra Sugar Mills were the plaintiffs, who filed a suit against Anant and Ors. (defendant Nos. 1, 2 and 3) for a declaration that defendant Nos. 1 and 2 had contracted to give on leases two Survey Nos. 26 and 27 to the plaintiff Company for a period of 12 years. The plaintiff Company had also asked for a rectification of document of lease dated 22. 5.1944 and for possession of the suit property along with other reliefs. It was the case of the plaintiff in that suit that one Kisan Jagdhanewas the owner of the suit property and defendant No. 2 had taken possessory mortgage of the same in the name of defendant No. 1. Defendant No. 3 was a tenant of the suit property. Defendant No. 2 was an Accountant in the plaintiff Company and one Shah was the then Manager of the plaintiff. It was the case of the plaintiff that defendant No. 2 and the said Shah acting in collusion defrauded the Company. The suit lands were agreed to be taken on lease for a period of 12 years on an annual rent of Rs. 451/- by an agreement dated 10.6.1943. One year rent was paid in advance and a receipt was passed in that connection in favour of the plaintiff Company by defendant No. 1. The plaintiff Company in the back ground of certain other facts pleaded that the rent note dated 23.9.1943 was sent to the Sub-Registrar for registration, but Mr. Shah, the then Manager of the Company, did not appear before the Sub-Registrar for admitting execution of the rent note. On these facts and further findings of the High Court in that judgment wherein it was held that the rent note Exhibit 56 dated 22.5.1941 could not be called as a lease. The High Court called it as a document creating tenancy within the provisions of Section 3 of the Act of 1948.
In order to find out whether the aforesaid judgment is of any help to the petitioners, it is necessary to find out basic facts of the civil suit which was filed by Ambadas Dhage against four defendants out of which defendant No. 3 Vithal Manjare and defendant No. 4 Shankar Kale were claiming tenancy right. This suit was filed for possession of 1/3rd share of the suit lands. The plaintiff had conceded that defendant No. 1 and defendant No. 2 being his sisters, were entitled to remaining 1/3rd share each. The defendant Nos. 3 and 4 are the husbands of the plaintiffs sisters. The plaintiff has alleged that these sisters and their husbands were residing together as one family and the defendants were the family members. The plaintiff also referred to the so called lease deed of 1956 as above and contended that it was not executed by his father and the same is illegal and did not clothe the defendants with any tenancy right.
In that civil suit the plaintiffs sisters i. e. defendant Nos. 1 and 2 in that suit filed separate written statement and defendant Nos. 3 and 4 i. e. the tenants filed separate written statement. It is pertinent to note that the sisters did not raise any plea that their husbands were the tenants of the suit land any where in the written statement, though they denied the claim of the plaintiff, as a heir. The tenants/defendant Nos. 3 and 4 In their written statement dealt with the case of the plaintiff in negative manner and contended that they were the tenants prior to 1956 and that the lease deed of 1956 was true and it was obtained by deceased Dhondi voluntarily, there is no allegation that deceased Dhondi executed the lease deed.
When the matter was referred to the Tenancy Court for deciding the issue of tenancy, the tenants no where stated that the lease deed was executed in presence of Dhondi, the original owner. The tenants did not examine any witness on the lease deed to show that Dhondi, the original owner, had asked the tenants to execute the sale deed and that he had consented to the same.
The lease deed dated 8.11.1956 was marked at Exhibit No. 1A. The Registrar who got the sale deed registered made his endorsement that these two tenants admitted to have executed this document. But the Registrar did not note the presence of the original landlord Dhondi or his consent to this sale deed in any manner.
It will be clear that the entire case of the petitioner was based on the sale deed which they could not and did not prove.
My attention in this regard was drawn by Mr. Samant to Section 3 of the Tenancy Act 1948. This section lays down as under :
The provisions of Chapter V of the Transfer of Property Act, 1882, shall in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of land to which this Act applies.
Chapter V of the Transfer of Property Act, 1882 is about leases of immovable property. Section 107 of the Transfer of Property Act provides that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument, and where such an instrument is created, the same should be executed by both the lessor and lessee.
Mr. Samant could not show that the provisions of Chapter V of the Transfer of Property Act are inconsistent with the provisions of the Tenancy Act.
Admittedly, the relationship of the landlord and tenant is a creation of agreement between the parties. This agreement has to be between the landlord or owner on one side and the person cultivating the land or tenant on the other side. The agreement can be oral or in writing. A person claiming tenancy right, particularly in a civil suit, with an intention to get the matter referred to the Tenancy Court has necessarily to plead this agreement and give all particulars like when it took place, with whom it took place, what was the nature of the agreement, duration of the agreement and terms of the agreement. If he is relying upon the agreement reduced into writing, then he must plead the above facts together with the facts of the execution of document, its attestation or its registration, if the document is registered. He must plead directly or indirectly that the document was brought into existence with the consent of landlord owner, and if the tenant is relying upon the document executed by tenant only, then he must plead why the consent or signature of the landlord was not obtained on the document, why the document was not executed in presence of the landlord/owner, and why the document was registered in the absence of the landlord only.
If the pleadings of the tenants/petitioners in the instant case are seen and which I have quoted above it will be clear that the tenants did not plead any of the above important things in their written statement, even though the plaintiff had in his plaint referred to this document and had denied its execution by the owner/landlord.
When the issue of tenancy came to be decided by the Tahasildar the tenants did not give any evidence as to when the agreement of lease or tenancy took place, with whom it took place, what was the nature of the agreement and what were the terms of the agreement. The tenants also did not give any evidence as to why he alone executed the lease agreement and why the landlord was not present and why his consent in writing was not obtained and why he was not kept present at the time of registration. The tenants also did not examine any of the attesting witnesses to the said document.
Even if the argument of Mr. Samant that the provisions of Transfer of Property Act, if they are inconsistent with the Tenancy Act shall not apply to the tenancy matter, is accepted, the case of the tenants regarding their tenancy right on the basis of such a document cannot at all be accepted by the Court. The Bombay High Court in the case of Jagannath Balwant Shedge v. The Maharashtra Sugar Mills Ltd. referred to above has given this finding in the facts peculiar to that case. Since the facts of the present case are altogether different and since the tenants have failed to prove their tenancy either by clear, consistent and cogent oral evidence preceded by detailed and complete pleadings covering all the necessary ingredients of the contractual tenancy, and since the tenants have failed to prove the execution of this sale deed by the landlord or his consent to the same, their plea was rightly rejected by the M.R.T. Therefore, I do not find any reason to interfere with the order of the M.R.T. as there is no perversity in the said order. Hence the following order:-
ORDER
Petition is dismissed.
Rule is discharged.
The answer given by the Maharashtra Revenue Tribunal to the reference of the Civil Court is accepted and this order should immediately be communicated to the Civil Court.
No order as to costs.