RAMESHCHANDRA DAULAL SONI & ANR.versusDEVICHAND HIRALAL GANDHI (DEAD) THR. LRS. SMT. GULABBAI DEVICHAND GANDHI & ORS.

46                       [2019]
              SUPREME COURT     17 S.C.R. 46
                             REPORTS                      [2019] 17 S.C.R.


A              RAMESHCHANDRA DAULAL SONI & ANR.
                                       v.
          DEVICHAND HIRALAL GANDHI (DEAD) THR. LRS.
           SMT. GULABBAI DEVICHAND GANDHI & ORS.
B                       (Civil Appeal No. 9834 of 2016)
                           NOVEMBER 14, 2019
                 [R. BANUMATHI, A. S. BOPANNA AND
                        HRISHIKESH ROY, JJ.]
            Bombay Rents, Hotels & Lodging Houses Rates Control Act,
C
     1947 – s.5(11) – Eviction – Plaintiff purchased a property – As
     on the date of purchase the predecessor of defendants No.1 and
     2 was the tenant of the said property – Defendants No.1 and 2
     thereafter continued as the tenants – The plaintiff informed the
     defendants No.1 and 2 through the communication dated
D    06.12.1986 about the purchase and had sought for payment of the
     rents – Defendants failed to pay the same – The plaintiff termed
     the defendants No.1 and 2 as defaulters and instituted a regular
     civil suit seeking eviction – Trial Court decreed the suit and directed
     the defendants to handover actual physical possession of the suit
     property – Aggrieved, defendants No.1 and 2 filed appeal and the
E
     same was dismissed by the Appellate Court – The Revision
     Applications were also dismissed by the High Court – Defendants
     No.1 and 2 contended that in view of the death of the original
     tenant, two sisters who were also the legal heirs but were not made
     defendants – It was also contended by all the legal heirs that the
F    suit property was an agricultural property and such rights inter-se
     between the parties were governed under the Maharashtra Tenancy
     and Agricultural Lands Act (MTAL Act) and the Civil Court did
     not have the jurisdiction – On appeal, held: The evidence available
     on record was assessed by the Trial Court as also the Appellate
     Court and have recorded a finding of facts – That such a finding
G
     was based on the oral evidence tendered and the documents that
     were relied upon and marked before the Trial Court, the finding
     of fact recorded cannot be considered as perverse so as to interfere
     in a proceeding of the present nature – So far as two sisters of
     defendants No.1 and 2 are concerned, their claim to be considered
H    as the tenants under the statutory tenant is a belated claim as an
                                         46
     RAMESHCHANDRA DAULAL SONI v. DEVICHAND                             47
           HIRALAL GANDHI (D) THR. LRS.

after thought – Defendant No.1 in his evidence stated that he used      A
the premises for storing food grain etc., there was no reference to
the business being carried on jointly with his sisters – Further, the
said sisters did not take any steps in any of the earlier proceedings
from 1989 to 2015 to get themselves impleaded by contending that
they were proper and necessary party – Insofar, contention to the
                                                                        B
effect that the suit property was an agricultural property, the said
contention was never raised in the suit or as to whether the issue
in the suit should be referred to the Authority under the MTAL Act
– Further, there is no document to indicate the procedure
contemplated under the MTAL Act was followed so as to conclude
that the predecessor of defendants No.1 and 2 had become landlord       C
of the property by operation of law so as to bar the jurisdiction
of the Civil Court – Therefore, contentions urged by the defendants
No.1 and 2 as also by all the legal heirs unsustainable.
      Dismissing the appeals, the Court
      HELD: 1. The provision in Section 5(11)(c)(ii) of Bombay          D
Rents, Hotels & Lodging houses Rates Control Act, 1947 noted
supra is clear that the persons carrying on the business with the
statutory tenant at the time of death would be entitled to continue
as a tenant. The second part of the said provision is that in the
absence of such member any heir of the deceased tenant as may           E
be decided by the Court in default of agreement, would get the
right. In the instant case the contention being urged that the
two daughters of the deceased tenants were also entitled to be
considered as the tenants under the statutory tenant, is a belated
claim as an afterthought. As taken note while considering the
factual aspect it has come on record that the plaintiff after having    F
purchased the property under a registered sale deed had issued
the notice dated 16.12.1986 as at Exhibit 80 and the trial court
has also recorded a finding that through the said notice the
plaintiff had informed the defendants No. 1 and 2 about the
purchase of the suit property. That apart, subsequently a notice        G
as at Exhibit 96 was issued to the defendants No. 1 and 2
demanding the arrears of rent. The said notice in fact had been
replied by the defendants No. 1 and 2 through the reply marked
at Exhibit 99. Neither at the first instance when the notice at
Exhibit 80 was issued was it indicated by the defendants No. 1
and 2 that their sisters had also become the statutory tenants          H
48            SUPREME COURT REPORTS                    [2019] 17 S.C.R.


A    and the notice in the nature of attornment of tenancy should be
     issued to them as well, nor in the reply which had been issued
     when the arrears of rent was demanded did the defendants No.
     1 and 2 contend that they were not the only one who were
     involved in the business along with the original statutory tenant
     and, therefore, all the legal heirs had succeeded as tenants on
B
     the death of the statutory tenant and, therefore, the demand, if
     any, is to be made from all of them. [Para 12] [58-B-G]
           2. Though such contention is put forth the defendants No.1
     and 2 did not attribute any right in favour of the sisters. In fact,
C    as noted by the trial court the defendants No. 1 and 2 have filed
     on record pursis with a Exhibit 137-A claiming to have deposited
     Rs. 1000/- on 09.9.2007 at ‘C’ Register No. 465 without prejudice
     to their rights towards the rent, causes of the suit etc. This in
     opinion of this Court would indicate that the defendants No. 1
     and 2 were claiming right for themselves and did not at that stage
D    state about the right if any, possessed by their sisters as well
     and have now raised the contention as an afterthought. Further
     in the evidence of defendant No. 1 he states that his grandfather
     took the suit premises on lease for the purpose of business of
     cotton ginning factory and he further states that the defendant
E    No. 1 used the premises to store food grain and equipment of
     agricultural and also cement. This would indicate that the
     defendant was referring to the business being carried on by him
     alone and there is no reference to the business being jointly
     carried on with his sisters or that none of the legal
     representatives including defendant No. 1 were carrying on
F
     business with the statutory tenant so as to claim benefit of the
     second part of Section 5 (11) (c) (ii) and claim joint inheritance
     of tenancy. Further the said position is also clear from the
     evidence of the one defendant witness ‘V’ who was examined
     to indicate that the premises was being used for the business
G    and in that regard, in the course of his evidence he has stated
     that the defendants No. 1 and 2 are keeping cement and food
     grain in the godown and that he is serving with the defendants
     1 and 2 since last 10 to 12 years but has not stated about the
     sisters also being involved in the business. If that be the
H    position even from the evidence of the said witness, it would
     RAMESHCHANDRA DAULAL SONI v. DEVICHAND                          49
           HIRALAL GANDHI (D) THR. LRS.

be clear that only first part of Section 5 (11) (c) (ii) would be    A
available and the sisters of defendant No. 1 and 2 cannot claim
right merely due to the fact that they are the legal heirs of the
deceased tenant. That apart the suit had been filed in the year
1989 and the same had crossed the stage of appeal as well as
revision before the High Court which had come to an end on           B
20.07.2015. In none of these proceedings the said sisters of
defendants No.1 and 2 have taken any steps to get themselves
impleaded by contending that they are proper and necessary
parties failing which their right would be affected. [Paras 13 and
14] [58-G-H; 59-A-F]
                                                                     C
      3. Further, having taken note of the contention of
defendant No. 5 what is noticed at the outset is that the
predecessor of the appellants, namely, the defendant No.5 did
not choose to file the written statement in the suit. In that
circumstance the contention to the effect that the suit schedule
property or a portion thereof was an agricultural property was       D
never the contention raised in the suit or as to whether the issue
in the suit should be referred to the Authority under the MTAL
Act. In that view no issue in that regard arose before the trial
court to consider as to whether the Civil Court had the
jurisdiction to entertain the suit. That apart the undisputed fact   E
is that the legal representatives of defendant No.5 had assailed
the judgment of the court below in CRA No.114/2012 which was
considered along with CRA No.112/2012 and claiming to be
aggrieved by the dismissal of the CRA No.114/2012 had
preferred SLP(C) No.31644/2015 before this Court. This Court
                                                                     F
through the order dated 23.11.2015 had dismissed the Special
Leave Petition. Despite failing in the very proceeding relating
to which the execution petition has been initiated the said legal
representatives of defendant No.5 filed the application in
execution proceedings claiming to be agricultural tenants and
defeat the execution by terming the decree as a nullity. It is in    G
the said proceedings the executing court having taken into
consideration all aspects, dismissed the application by the order
dated 15.10.2018. The executing court thus having taken into
consideration the order dated 20.07.2015 passed by the High
Court in CRA Nos.112, 113 and 114 of 2012 has dismissed the          H
50            SUPREME COURT REPORTS                    [2019] 17 S.C.R.


A    application. Further the right as claimed by the said legal
     representatives based on the entry contained in 7/12 extract has
     been rejected. There is no error committed by the executing
     court for the following reasons. [Para 16] [61-H; 62-A-E]
           4. In view of this Court even assuming for a moment that
B    the name of the predecessor was indicated in the 7/12 extract,
     the basis of such entry is not demonstrated to be made after the
     procedure being followed. Though the reference contained in the
     lease deed dated 22.05.1928 has been relied upon that the hut
     of the agricultural tenant is situate in the leased land, there is
     no reference made to the name of such tenant so as to indicate
C
     that the reference is to their predecessor i.e. defendant No.5
     nor can the co-existence of the agricultural operations being
     carried out in the land which was leased for storage of goods be
     assumed without definite material or demarcation indicated from
     records. The reference is only to the existence of a hut. That
D    apart even if the same is taken as a reference to the defendant
     No.5 in the year 1928 the tenancy being continued and being
     operational on the tiller’s day i.e. 01.04.1957 is to be established
     to claim right under MTAL Act. Further while the MTAL Act
     creates right in favour of the agricultural tenant as on the
E    appointed day the further procedure as contemplated is also
     required to be followed under Section 32G of the said Act. In
     the instant case apart from the fact that no such contention was
     urged in the suit by filing a written statement, no document to
     indicate that the procedure contemplated under the MTAL Act
     has been followed is available so as to conclude that the
F    defendant No.5 had become the landlord of the property by
     operation of law so as to bar the jurisdiction of the Civil Court.
     [Para 17] [62-F-H; 63-A-B]
           Damadi Lal & Ors. v. Parash Ram & Ors. (1976) 4
           SCC 855 : [1976] Suppl. SCR 645 ; Gian Devi Anand
G          v. Jeevan Kumar & Ors. (1985) 2 SCC 683 : [1985] 1
           Suppl. SCR 1 ; Uttam v. Saubagh Singh & Ors. (2016)
           4 SCC 68 : [2016] 2 SCR 100 - referred to.
           Amrit Bhikaji Kale and Ors. S. Kashinath Janardhan
           Trade & Anr. (1983) 3 SCC 437 : [1983] 3 SCR 237
H          – held inapplicable.
     RAMESHCHANDRA DAULAL SONI v. DEVICHAND                              51
           HIRALAL GANDHI (D) THR. LRS.

                       Case Law Reference                                A
[1976] Suppl. SCR 645             referred to           Para 11

[1985] 1 Suppl. SCR 1             referred to           Para 11

[2016] 2 SCR 100                   referred to          Para 11          B
[1983] 3 SCR 237                   held inapplicable    Para 15

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9834
of 2016.

      From the Judgment and Order dated 20.07.2015 of the High           C
Court of Judicature at Bombay, Bench at Aurangabad in Civil Revision
Application No. 112 of 2012.

      With
                                                                         D
      Civil Appeal No. 8450 of 2019.

      Siddharth Bhatnagar, Siddhartha Dave, Sr. Advs., Aditya Sidhra,
Nirnimesh Dube, Dilip Annasaheb Taur, Ms. Jemtiben AO, Ms. Saumya
Gupta, Siddhant Krishna Dave, Advs. for the Appellants.
                                                                         E
      Uday B. Dube, Adv. for the Respondents.

      The Judgment of the Court was delivered by

      A. S. BOPANNA, J.
                                                                         F
       1. Though different orders, dated 20.07.2015 passed in CRA
No.112/2012 and dated 15.10.2018 passed in CRA No.157/2018 are
assailed in these two appeals, issues for consideration however arise
out of the common lis between the parties based on the judgment passed
in the Regular Civil Suit No.253/1989 to which the appellants in C.A.
No.9834/2016 were defendants No.1 and 2 while the predecessor of         G
appellants in C.A. No.8450/2019 was defendant No.5. Hence both these
appeals were taken together for hearing and are being disposed by this
common judgment. For the sake of convenience and clarity the parties
would be referred in the same rank assigned to them in the suit. Since
the claim of the appellants in C.A. No.8450/2019 is in the capacity of   H
52            SUPREME COURT REPORTS                         [2019] 17 S.C.R.


A    legal representatives of the deceased original defendant No.5, the case
     put forth by them will be considered by referring to them as defendant
     No.5.
            2. The brief facts noticed for the purpose of disposal of these
     appeals is as hereunder. The property bearing S.No. 9/1/A measuring
B    22 guntas situate at Chahurana Bk., Taluka Nagar, Ahmednagar District
     presently bearing Plot No.19 within Ahmednagar Municipal Limits,
     measuring 2656 sq mtrs (hereinafter referred to as the ‘suit property’)
     which earlier belonged to Deshmukh Brothers was purchased by the
     plaintiff under a Sale Deed dated 08.08.1986. The plaintiff thereafter
C    secured the Revenue entries to be recorded in his name. As on the
     date of purchase the predecessor of defendants No.1 and 2 was the
     tenant in respect of the suit property paying the rent of Rs.31/- per
     annum. The defendants No.1 and 2 thereafter continued as the tenants.
     The plaintiff informed the defendants No. 1 and 2 through the
D    communication dated 06.12.1986 about the purchase and had sought
     for payment of the rents. The defendants No. 1 and 2 failed to pay the
     same and since according to the plaintiff the defendants were also not
     using the premises for the purpose for which it was let out, the plaintiff
     termed the defendants No. 1 and 2 as defaulters and instituted the
     Regular Civil Suit No.253/1989 seeking eviction of the defendants No.
E    1 and 2 as also the defendants No.3 to 7 whom the plaintiff described
     as the sub-tenants in the premises.
            3. The defendants in the suit were issued with the suit summons.
     The defendants No. 1 and 2 appeared and filed their respective written
     statement. The defendants No. 3 and 5 did not choose to file the written
F
     statement while the defendants No. 4, 6 and 7 did not appear before
     the Trial Court and were therefore, proceeded ex-parte. The defendants
     No. 1 and 2 opposed the claim made in the plaint on merits, apart from
     contending that the suit was barred by limitation. The fact that their
     predecessor had taken the premises under lease deed dated 22.05.1928
G    for a period of 31 years on the annual rent of Rs.31/- was admitted
     and that the lease deed expired by efflux of time on 22.05.1959 was
     also stated. The said defendants however contended that they were
     not informed about the purchase by the plaintiff. The Trial Court based
     on the rival pleadings had framed as many as eleven issues. The parties
H    in order to discharge their burden cast under the issues had tendered
     RAMESHCHANDRA DAULAL SONI v. DEVICHAND                                  53
    HIRALAL GANDHI (D) THR. LRS. [A. S. BOPANNA, J.]

evidence. The Trial Court by its judgment dated 13.10.1998 decreed           A
the suit and directed the defendants No.1 to 7 to handover actual
physical possession of the suit property and also to pay the amount of
Rs.162/-. Further, enquiry regarding mesne profits was also ordered.
The defendants No.1 and 2 claiming to be aggrieved by the said
judgment preferred an appeal before the Principal District Judge,            B
Ahmednagar in Regular Civil Appeal No.315/1998. The Appellate
Court having adverted to the rival contentions has dismissed the appeal
through the judgment dated 18.02.2012. The cross objections filed by
the plaintiff and the defendants No.2 to 6 was also dismissed. The
defendants No.1 and 2 claiming to be aggrieved by the said judgment
                                                                             C
were before the High Court of Judicature at Bombay, Bench at
Aurangabad in CRA No.112/2012. The High Court having taken note
of the rival contentions has by a detailed order dismissed the revision
application. The analogous Civil Revision Applications filed by the
remaining defendants in CRA No.113/2012 and 114/2012 were also
disposed of by the same common judgment dated 20.07.2015. It is in           D
that background, the defendants No.1 and 2 claiming to be aggrieved
by the concurrent judgments are before this Court in this appeal. The
connected appeal in C.A. No. 8450/2019 is against the order dated
15.10.2018 arising out of execution proceedings in regular darkhast No.
15 of 2016.                                                                  E
      4. We have heard Mr. Siddharth Bhatnagar, learned senior
advocate for the appellants in C.A. No.9834/2016 (defendants No.1
and 2), Mr. Siddhartha Dave, learned senior advocate for the appellants
in C.A. No.8450/2019 (legal representatives of defendant No.5)
Mr. Uday B. Dube, learned counsel for the respondent (plaintiffs in          F
the suit) and perused the appeal papers.
      5. As noticed, the suit in question was filed by the plaintiffs
seeking eviction of the defendants No.1 and 2 who were the tenants
and also the remaining defendants who were described as the sub-
tenants. Before adverting to the nature of contentions put forth by the      G
respective learned senior advocates for the defendants which is
emphasised on the very maintainability of the suit, it is necessary to, at
the outset, take note of the nature of consideration made by the Trial
Court which has been upheld by the Lower Appellate Court and the
High Court respectively. The nature of the contentions put forth by          H
54            SUPREME COURT REPORTS                        [2019] 17 S.C.R.


A    the parties is adverted to above. On the rival pleadings to that effect
     the Trial Court framed the following issues which read as hereunder:
                                    ISSUES
          ISSUES
B     1. Does the plaintiff prove that there is relation of tenant and
          landlord between the defendant and himself ?
      2. Does the plaintiff prove that defendants are wilful defaulter?
      3. Whether suit notice given by the plaintiff is legal and valid?
      4. Does the plaintiff prove that suit premises is not used by the
          defendants for more than 6 months before filing this suit
C         without reasonable cause?
      5. Whether plaintiff proves that defendant Nos. 1 and 2 have
          sub-let some portion of the suit premises to the defendants
          Nos.3 to 7?
      6. Whether the suit is barred by Law of Limitation?
      6A. Is the suit bad for mis-joinder of necessary parties?
D     6B. Is the suit properly valued stamped?
      6C. Whether this Court has jurisdiction to try the suit?
      7. What due towards the defendants?
      8. Is plaintiff entitled to receive amount mentioned in para No.7
          of the plaint?
E     9. Is plaintiff entitled for actual physical possession of suit
          property from defendants Nos.1 to 7 after removing structure
          thereon?
      10. Is plaintiff entitled for damages from the defendants from
          the date of suit till recovery of the possession?
      11. What order and decree?
F
            6. In the background of the issues framed, the plaintiff No.1
     examined himself as PW-1 and the Trial Court has taken note of his
     deposition as at Exhibit 78. The manner in which the plaintiff had
     acquired right to the property has been stated and the Sale Deed was
     also marked in evidence as Exhibit 77/4. The fact of purchase was
G    informed to the defendants No.1 and 2 through the notice dated
     16.12.1986 which was marked as Exhibit 80. The said notice was
     essentially in the nature to attorn the tenancy whereupon the defendants
     No.1 and 2 were required to recognise the plaintiff as the landlord and
     pay the rent accordingly. The fact that the defendants No.1 and 2 were
     continuing as the tenants in respect of the suit schedule property under
H
     RAMESHCHANDRA DAULAL SONI v. DEVICHAND                                   55
    HIRALAL GANDHI (D) THR. LRS. [A. S. BOPANNA, J.]

the lease deed dated 16.07.1928 was also brought in evidence by               A
marking the same as Exhibit 100 whereunder the predecessor of the
vendors of the plaintiff had leased the property to the predecessor of
the defendants No.1 and 2. The fact that the lease was for 31 years
was established and the Trial Court in that regard had also taken into
consideration that the lease had come to an end by efflux of time as
                                                                              B
contemplated under Section 111 of the Transfer of Property Act. In
that circumstance, the defendants No.1 and 2 were considered to be
the statutory tenants under the Bombay Rents, Hotel & Lodging Houses
Rates Control Act, 1947 (‘Rent Act’ for short). Thus, having determined
the relationship of landlord and tenant between the plaintiff and the
defendant No.1 and 2 the Trial Court proceeded to consider the other          C
aspects of the matter. In that regard the provision as contained in
Section 5(11) of the Rent Act was taken note.
        7. Insofar as the defendants No.3 to 7 though the plaintiffs had
contended that they are the sub-tenants under the defendants No.1 and
2, in the absence of there being plausible evidence relating to subletting,   D
the Trial Court rejected the contention and held them to be the trespassers
liable to be evicted and, in such event, directed all the defendants to
vacate. Insofar as the ground on which the eviction was sought, namely,
the defendants No.1 and 2 had failed to pay the rent and, therefore,
they were defaulters and also that the property was not being put to          E
use for the purpose which it had been rented out, the trial court
considered these aspects while answering issue Nos.2 to 4. In that
regard the notice issued by the plaintiff at Exhibit 96 and the postal
receipts at Exhibits 97 and 98 was taken into consideration whereby
the plaintiff had demanded for payment of the rents. In that background
the reply issued by the defendants No.1 and 2 at Exhibit 99 was taken         F
note and the Court was of the view that the defendants No.1 and 2
did not indicate their readiness and willingness to pay the arrears of
rent. Further the evidence tendered by defendant No.1 at Exhibit 106
was taken note wherein he had stated that the rent had not been paid
from the year 1959 as nobody had demanded the rent from him. While            G
taking note of the same the trial court has taken into consideration that
the said statements of defendant No.1 cannot be accepted inasmuch
as the plaintiff in fact had issued the notice on 01.09.1988 whereby
the demand had been made. In that background the default in payment
of rent was accepted and held against the defendants No.1 and 2.
                                                                              H
56            SUPREME COURT REPORTS                        [2019] 17 S.C.R.


A           8. Insofar as the non-user of the premises for the purpose which
     it had been rented out, the evidence to the effect that the premises was
     given for the purpose of storage of goods namely cotton was taken
     into consideration. The fact that there was a shed and the same not
     being put to use for the last several years as it was in a dilapidated
     condition was also taken note. Though a report of the Commissioner
B    as at Exhibit 10 was available on record the same was not taken into
     consideration and relied upon for technical reasons. Be that as it may,
     the trial court has also taken into consideration the deposition of the
     defendant No.1 that he has been practising as an advocate in the High
     Court of Bombay and that at the point when the premises was taken
C    on lease the grandfather of defendant No.1 was doing business of
     cotton ginning factory and he was also doing business in foodgrain. He
     had admitted that the business of cotton ginning factory is closed due
     to ban imposed by Maharashtra Cotton Act and the premises is not
     used for storage of cotton but was being used for storing agricultural
     equipments and cement. In that view, the trial court had also held that
D    the premises was not being used for the purpose it had been leased
     and accordingly the grounds on which the eviction petition had been
     filed was upheld.
            9. On the contention relating to the defendants Nos.3 to 5 the
     same was considered while answering issue No.5 and as indicated above
E    though they were not accepted to be the sub-tenants as claimed by
     the plaintiff, the trial court has held that they are trespassers and not
     entitled to continue in the premises. The lower appellate court had taken
     note of the evidence, reappreciated the same and in that background
     had upheld the judgment passed by the trial court.
F           10. On the factual aspects of the matter though Mr. Siddharth
     Bhatnagar, learned senior advocate sought to assail the concurrent
     judgements, we notice that the evidence available on record has been
     assessed by the trial court as also the appellate court and have recorded
     a finding of fact with regard to the relationship between the parties
     and also the ground on which the eviction had been sought. In that
G    circumstance when we notice that such finding is with reference to
     the oral evidence tendered and the documents that were relied upon
     and marked before the trial court, the finding of fact recorded cannot
     be considered as perverse so as to interfere in a proceeding of the
     present nature. The learned senior advocate would, however, contend
H    that the suit schedule property admittedly was leased to the predecessor
     RAMESHCHANDRA DAULAL SONI v. DEVICHAND                                    57
    HIRALAL GANDHI (D) THR. LRS. [A. S. BOPANNA, J.]

of defendants No.1 and 2 and in view of the death of the original tenant       A
the defendants No.1 and 2 have been arrayed as parties. It is contended
that the defendants No.1 and 2 had two sisters who were also the legal
heirs of the original tenant but not made defendants. In that regard it
was contended that in a circumstance where the predecessor was a
statutory tenant, on the death of such statutory tenant the tenancy is
                                                                               B
inheritable by all the legal heirs and all of them were proper and
necessary parties. To contend so the learned senior advocate has
referred to the provision contained in Section 5(11)(c)(ii) which reads
as hereunder:
      “In this Act unless there is anything repugnant to the subject or
      context.                                                                 C

      (11) “rent” means any person by whom or on whose account
      rent is payable for any premises and include,
      (c)(ii) in relation to any premises let for the purposes of education,
      business, trade or storage, when the tenant dies, whether the            D
      death has occurred before or after the commencement of the
      said Act, any member of the tenant’s family using the premises
      for the purposes of education of carrying on business, trade or
      storage in the premises, with the tenant at the time of his death,
      or, in the absence of such member, any heir of the deceased
      tenant, as may be decided in default of agreement by the Court.”         E

        11. The learned senior advocate in that regard, to contend that
all the legal representatives of the statutory tenant would be entitled to
continue as tenants and that the High Court has committed an error in
holding that they are not the tenants in common, has referred to the
decisions in the case of Damadi Lal & Ors. vs. Parash Ram & Ors.               F
1976(4) SCC 855 wherein inter alia it is held that the statutory tenancy
under the Rent Act is heritable. To the same effect the decision in the
case of Gian Devi Anand vs. Jeevan Kumar & Ors. 1985 (2) SCC
683 is relied upon. Further, the decision in the case of Uttam vs.
Saubagh Singh & Ors. 2016 (4) SCC 68 is relied upon to contend                 G
that when a male Hindu dies after commencement of Hindu Succession
Act 1956, and in view of the second exception engrafted on proposition
(i) is contained in the proviso to Section 6, which states that if such a
male Hindu had died living behind a female relative specified in class 1
of the schedule such female relative surviving him would have interest
in the coparcenary property to contend that the statutory tenancy being        H
58            SUPREME COURT REPORTS                          [2019] 17 S.C.R.


A    heritable with rights attached to it, the sisters of defendants No. 1 and
     2 are also entitled to such right.
            12. Having taken note of the contentions put forth, to the extent
     of the position of law as enunciated in the decisions cited supra there
     can be no quarrel whatsoever. However, what is necessary to be taken
B    note is the fact situation in the instant case to arrive at a conclusion.
     The provision in Section 5(11)(c)(ii) noted supra is clear that the persons
     carrying on the business with the statutory tenant at the time of death
     would be entitled to continue as a tenant. The second part of the said
     provision is that in the absence of such member any heir of the
     deceased tenant as may be decided by the Court in default of
C    agreement, would get the right. In the instant case the contention being
     urged that the two daughters of the deceased tenants were also entitled
     to be considered as the tenants under the statutory tenant, is a belated
     claim as an afterthought. As taken note while considering the factual
     aspect it has come on record that the plaintiff after having purchased
D    the property under a registered sale deed had issued the notice dated
     16.12.1986 as at Exhibit 80 and the trial court has also recorded a
     finding that through the said notice the plaintiff had informed the
     defendants No. 1 and 2 about the purchase of the suit property. That
     apart, subsequently a notice as at Exhibit 96 was issued to the
     defendants No. 1 and 2 demanding the arrears of rent. The said notice
E    in fact had been replied by the defendants No. 1 and 2 through the
     reply marked at Exhibit 99. Neither at the first instance when the notice
     at Exhibit 80 was issued was it indicated by the defendants No. 1 and
     2 that their sisters had also become the statutory tenants and the notice
     in the nature of attornment of tenancy should be issued to them as well,
F    nor in the reply which had been issued when the arrears of rent was
     demanded did the defendants No. 1 and 2 contend that they were not
     the only one who were involved in the business along with the original
     statutory tenant and, therefore, all the legal heirs had succeeded as
     tenants on the death of the statutory tenant and, therefore, the demand,
     if any, is to be made from all of them.
G
            13. Though such contention is put forth the defendants No.1 and
     2 did not attribute any right in favour of the sisters. In fact, as noted
     by the trial court the defendants No. 1 and 2 have filed on record pursis
     with a Exhibit 137-A claiming to have deposited Rs. 1000/- on 09.9.2007
     at ‘C’ Register No. 465 without prejudice to their rights towards the
H    rent, causes of the suit etc. This in our opinion would indicate that the
     RAMESHCHANDRA DAULAL SONI v. DEVICHAND                                     59
    HIRALAL GANDHI (D) THR. LRS. [A. S. BOPANNA, J.]

defendants No. 1 and 2 were claiming right for themselves and did not           A
at that stage state about the right if any, possessed by their sisters as
well and have now raised the contention as an afterthought. Further
in the evidence of defendant No. 1 he states that his grandfather took
the suit premises on lease for the purpose of business of cotton ginning
factory and he further states that the defendant No. 1 used the premises
                                                                                B
to store food grain and equipment of agricultural and also cement. This
would indicate that the defendant was referring to the business being
carried on by him alone and there is no reference to the business being
jointly carried on with his sisters or that none of the legal representatives
including defendant No. 1 were carrying on business with the statutory
tenant so as to claim benefit of the second part of Section 5 (11) (c)          C
(ii) and claim joint inheritance of tenancy. Further the said position is
also clear from the evidence of the defendant witness Shri Vanaji
Dhoodiram Dani who was examined to indicate that the premises was
being used for the business and in that regard, in the course of his
evidence he has stated that the defendants No. 1 and 2 are keeping
                                                                                D
cement and food grain in the godown and that he is serving with the
defendants 1 and 2 since last 10 to 12 years but has not stated about
the sisters also being involved in the business. If that be the position
even from the evidence of the said witness, it would be clear that only
first part of Section 5 (11) (c) (ii) would be available and the sisters of
defendant No. 1 and 2 cannot claim right merely due to the fact that            E
they are the legal heirs of the deceased tenant.
       14.That apart the suit had been filed in the year 1989 and the
same had crossed the stage of appeal as well as revision before the
High Court which had come to an end on 20.07.2015. In none of these
proceedings the said sisters of defendants No.1 and 2 have taken any            F
steps to get themselves impleaded by contending that they are proper
and necessary parties failing which their right would be affected. At
this stage it is necessary to take note that the learned counsel for the
parties have brought to the notice of this Court that the said two sisters
have filed a Civil Suit bearing No.516/2015 for declaration of their right
which is pending before the Civil Court. The very sequence noticed              G
above would indicate that the said sisters had not put forth their claim
earlier and the present suit appears to be a ploy to put a spoke in the
wheel on realising that the contention as put forth by defendants No.1
and 2 did not yield the desired result inasmuch as the Civil Revision
Application came to be dismissed in the year 2015. Hence, neither the           H
60             SUPREME COURT REPORTS                          [2019] 17 S.C.R.


A    provision of the Rent Act or the decisions relied upon supra will be of
     assistance to the defendants No. 1 and 2. In that circumstance the
     contention as put forth by the learned senior advocate for the defendants
     No.1 and 2 is liable to be rejected, which we accordingly do.
            15. Mr. Siddhartha Dave, learned senior advocate for the legal
B    representatives of defendant No.5 would contend that defendant No.5
     was an agricultural tenant in respect of the suit schedule property and
     as such the rights inter-se between the parties is governed under the
     Maharashtra Tenancy and Agricultural Lands Act (‘MTAL Act’ for
     short). He contends that under the said Act there is a bar contemplated
     under Section 85 of the Act against the Civil Court entertaining any
C    question which is required to be settled, decided or dealt with by the
     Mamlatdar or Tribunal, Manager, the Collector or the Maharashtra
     Revenue Tribunal. In that view, it is contended that the suit schedule
     property being an agricultural property, the Civil Court did not have the
     jurisdiction. The learned senior advocate has referred to a document
D    at Annexure P-1, namely, 7/12 extract to indicate that the name of the
     defendant No.5 is depicted as tenant in respect of a portion of the suit
     schedule property. It is his further contention that in the lease deed
     dated 22.05.1928 (Annexure P-2) executed by the predecessor of the
     plaintiff in favour of the predecessor of the defendants No.1 and 2, in
     Clause 6 thereof it makes a reference to the existence of a hut of the
E    agricultural tenant in the land and that it should be kept as it is and that
     the lessee will not obstruct them. In that view, it is contended that the
     said document would establish that the land in question is an agricultural
     land and the Civil Court ought not to have entertained the suit. The
     learned senior advocate in that regard has referred to the decision in
F    the case of Amrit Bhikaji Kale and Ors. Vs. Kashinath Janardhan
     Trade & Anr, (1983) 3 SCC 437 wherein it is held as hereunder:
           “6. The Tenancy Act was comprehensively amended by
           Amending Act 15 of 1957. The amendment brought in a
           revolutionary measure of agrarian reforms making tiller of the
G          soil the owner of the land. This was done to achieve the object
           of removing all intermediaries between tillers of the soil and the
           State. Section 32 provides that by mere operation of law, every
           tenant of agricultural land situated in the area to which the Act
           applies shall become by the operation of law, the owner thereof.
           He is declared to be a deemed purchaser without anything more
H          on his part. A Constitution Bench of this court in Sri Ram Ram
     RAMESHCHANDRA DAULAL SONI v. DEVICHAND                                      61
    HIRALAL GANDHI (D) THR. LRS. [A. S. BOPANNA, J.]

      Narain Medhiv. State of Bombay [1959 Supp 1 SCR 489, 518-                  A
      19 : AIR 1959 SC 459 : 1959 SCJ 679] held that:
         “The title of the landlord to the land passes immediately to
         the tenant on the tillers’ day and there is a completed purchase
         or sale thereof as between the landlord and the tenant. The
         title of the land which was vested originally in the landlord           B
         passes to the tenant on the tillers’ day and this title is defeasible
         only in the event of the tenant failing to appear or making a
         statement that he is not willing to purchase the land or commit
         default in payment of the price thereto as determined by the
         Tribunal.”
                                                                                 C
      Therefore, it is unquestionably established that on the tillers’ day,
      the landlord’s interest in the land gets extinguished and
      simultaneously by a statutory sale without anything more by the
      parties, the extinguished title of the landlord is kindled or created
      in the tenant. That very moment landlord-tenant relationship as
                                                                                 D
      understood in common law or Transfer of Property Act comes
      to an end. The link and chain is broken. The absent
      non-cultivating landlord ceases to have that ownership element
      of the land and the cultivating tenant, the tiller of the soil becomes
      the owner thereof. This is unquestionable. The landlord from the
      date of statutory sale is only entitled to receive the purchase price      E
      as determined by the Tribunal under Section 32-G. In other words,
      the landlord ceases to be landlord and the tenant becomes the
      owner of the land and comes in direct contact with the State.
      Without any act of transfer inter vivos the title of the landlord is
      extinguished and is created simultaneously in the tenant making
                                                                                 F
      the tenant the deemed purchaser. It is an admitted position that
      on April 1, 1957 Tarachand was the landlord and Janardhan was
      the tenant. Tarachand landlord was under no disability as envisged
      by Section 32-F. Therefore on April 1, 1957 Janardhan became
      deemed purchaser and Mr Lalit could not controvert this
      position.”                                                                 G
      16. The position of law and decision cited cannot be applied in
abstract. Therefore, the fact situation is to be noticed. Hence having
taken note of the above contention what is noticed at the outset is that
the predecessor of the appellants, namely, the defendant No.5 did not
choose to file the written statement in the suit. In that circumstance           H
62             SUPREME COURT REPORTS                          [2019] 17 S.C.R.


A    the contention to the effect that the suit schedule property or a portion
     thereof was an agricultural property was never the contention raised
     in the suit or as to whether the issue in the suit should be referred to
     the Authority under the MTAL Act. In that view no issue in that regard
     arose before the trial court to consider as to whether the Civil Court
     had the jurisdiction to entertain the suit. That apart the undisputed fact
B
     is that the legal representatives of defendant No.5 had assailed the
     judgment of the court below in CRA No.114/2012 which was considered
     along with CRA No.112/2012 and claiming to be aggrieved by the
     dismissal of the CRA No.114/2012 had preferred SLP(C) No.31644/
     2015 before this Court. This Court through the order dated 23.11.2015
C    had dismissed the Special Leave Petition. Despite failing in the very
     proceeding relating to which the execution petition has been initiated
     the said legal representatives of defendant No.5 filed the application in
     execution proceedings claiming to be agricultural tenants and defeat the
     execution by terming the decree as a nullity. It is in the said proceedings
     the executing court having taken into consideration all aspects, dismissed
D
     the application by the order dated 15.10.2018. The executing court thus
     having taken into consideration the order dated 20.07.2015 passed by
     the High Court in CRA Nos.112, 113 and 114 of 2012 has dismissed
     the application. Further the right as claimed by the said legal
     representatives based on the entry contained in 7/12 extract has been
E    rejected. We find no error committed by the executing court for the
     following reasons.
            17. In our view even assuming for a moment that the name of
     the predecessor was indicated in the 7/12 extract, the basis of such
     entry is not demonstrated to be made after the procedure being
F    followed. Though the learned senior advocate has relied on the reference
     contained in the lease deed dated 22.05.1928 that the hut of the
     agricultural tenant is situate in the leased land, there is no reference
     made to the name of such tenant so as to indicate that the reference is
     to their predecessor i.e. defendant No.5 nor can the co-existence of
     the agricultural operations being carried out in the land which was leased
G    for storage of goods be assumed without definite material or demarcation
     indicated from records. The reference is only to the existence of a hut.
     That apart even if the same is taken as a reference to the defendant
     No.5 in the year 1928 the tenancy being continued and being operational
     on the tiller’s day i.e. 01.04.1957 is to be established to claim right under
     MTAL Act. Further while the MTAL Act creates right in favour of
H    the agricultural tenant as on the appointed day the further procedure
     RAMESHCHANDRA DAULAL SONI v. DEVICHAND                                     63
    HIRALAL GANDHI (D) THR. LRS. [A. S. BOPANNA, J.]

as contemplated is also required to be followed under Section 32G of            A
the said Act. In the instant case apart from the fact that no such
contention was urged in the suit by filing a written statement, no
document to indicate that the procedure contemplated under the MTAL
Act has been followed is available so as to conclude that the defendant
No.5 had become the landlord of the property by operation of law so
as to bar the jurisdiction of the Civil Court.                                  B
       18. In that view, the decision referred to supra by learned senior
advocate would not be of assistance in the present case since the said
decision only indicates the legal position and was applicable in the said
case since in that case it was an admitted position that as on 01.04.1957
Tara Chand was the landlord and Janardan was the tenant. On the other           C
hand, in the present facts as already noticed no such contention was
taken at the first instance nor has it been conclusively established that
the defendant No.5 was an agricultural tenant more so in the
circumstance where the suit schedule property did not continue to exist
as an agricultural property but was within Ahmednagar Municipal Limits
which was a Town Planning Scheme as on the date of the suit. Though             D
we are not oblivious to the fact that certain agricultural properties would
subsequently get included in the Town Planning Scheme, in the instant
facts if the claim of the defendant No.5 is to be taken note, not only
the reliance on 7/12 extract but a subsequent inclusion of the name in
the Municipal records based on any right that was crystalized in favour         E
of defendant No. 5 based on the MTAL Act was also necessary to be
established. In the absence of the same the contention put forth by the
learned senior advocate cannot be accepted.
       19. In the above circumstance, when the contentions as urged
by the learned senior advocate for defendants No.1 and 2 as also the
                                                                                F
defendant No.5 are unsustainable and in that background when we have
noticed that all three Courts have concurrently appreciated the material
available on record and have recorded a finding of fact to order eviction
of the defendants, we see no reason to interfere either with the judgment
dated 20.07.2015 passed in CRA No.112/2012 or the judgment dated
15.10.2018 in CRA No.157/2018.                                                  G
       20. Both the appeals accordingly stand dismissed with no order
as to costs. Pending applications if any are also disposed of.


Ankit Gyan                                                 Appeals dismissed.
                                                                                H