RATILAL DOSABHAI TANNA Vs. ABDULHUSEIN HASANALI

JUDGEMENT

(1.) There is a house property bearing no. 453 on plot no. 12 at Rajkot and the property is known as Manoramya. The plaintiffs are the brothers and the defendant wanted to sell the above property. The plaintiffs case is that on 10-5-1968 an agreement was entered into between the parties by which the plaintiffs agreed to purchase the property for a sum of Rs. 1 10 0 That document is at Exh. 120. On that date two months time was fixed for executing the sale-deed. However the defendant wanted a sum of Rs. 35 0 which the defendant wanted to pay to the Co-operative Bank as the title-deeds were lying with the bank and the defendant had borrowed money. The plaintiffs further case is that the defendant approached for the above sum and they were not willing to part with the sum of Rs. 35 0 as two months time was fixed initially for executing the document. The defendant thereupon agreed to execute the sale-deed at the earliest and therefore the sum of Rs. 35 0 was paid on 16-5-1968. Ultimately this sale deed was executed on 18-5-1968 and it was presented for registration. However the document could not be registered on that day as the Sub-Registrar insisted for production of income-tax clearance certificate. The defendant applied for the same and ultimately got the same on 15- 1968. The document came to be registered on 17-7-1969. That document is at Exh. 122. On the day on which the sale-deed was executed another agreement was entered into between the parties and that document is exhibit 123. The plaintiffs case is that the defendant wanted time for the purpose of banding over possession of the suit property and therefore exhibit 123 was entered into and according to the plaintiffs case it is a document of licence. The plaintiffs in the beginning hesitated for giving time and ultimately the defendant agreed to deposit a sum of Rs. 50 0 for due performance of the contract. According to the plaintiffs the defendant agreed to hand over the possession of the suit property on 10-2-1969. The defendant did not hand over possession on 10-2-1969 as per document Exh. 123 and on 14-2-1969 the plaintiffs sent a telegram Exh. 89. A notice was also addressed by the plaintiffs to the defendant which is produced at exhibit 90. The defendant gave reply on 1-3-1969 by sending a telegram which is at Exh. 92. The defendant also sent a reply on the next day i. e. On 2-3-1969 and that reply is at Exh. 93. There after the plaintiffs gave a counter-reply on 10-3-1969 which is at Exh. 94. Thereafter on 28-3-1969 the plaintiffs filed Special Civil Suit No. 29 of 1969 in the court of Civil .Judge (S. D.) at Rajkot. The plaintiffs claimed possession of the suit properly and they prayed for mandatory injunction asking the defendant to remove himself and his belongings and his family members and dependents and his agents and servants from the suit premises. A permanent prohibitory injunction was also prayed for. The plaintiffs also prayed for compensation at the rate of Rs. 1 0 per month from 10 till the possession of the suit premises was banded over. The mesne profits at the rate of Rs. 1 0 were calculated from 10-2-69 till 28 the date on which the suit was filed and a sum of Rs. 1632.00 was claimed. The plaintiffs also prayed for the damages and the damages were calculated at the rate of Rs. 500.00 per month from 1-3-1975. An amount of Rs. 26 100 was claimed as damages and they were calculated at the rate of Rs. 500.00 per month as paid to Mrs. Vidyagauri N. Mehta. The amount was sub-divided and Rs. 3600.00 were calculated till 31 and Rs. 22500.00 were calculated from 1-6-1971 till 28-2-1975 and from 1-3-1975 a sum of Rs. 500.00 per month was claimed. ... ... ... ... ... ... ... ... ... ... ...

(2.) The next question which is required to be considered is whether the defendant is tenant of the suit property from 18-5-1968. The case of the plaintiffs is that the defendant is a licensee. This is a question of considerable importance and the arguments were advanced at great length and therefore this question is required to be examined closely. According to the learned advocate Shri Mehta though in the document- Exh. 122 it was mentioned that vacant possession was handed over in fact no possession was handed over and at that time Exh. 123 was entered into between the parties. Exhibit 123 is dated 18-5-1968. It is signed by the plaintiffs and the defendant. In paragraph I of that document it is stated that the suit property is sold and vacant possession is handed over. It is further mentioned that the suit house was given for use on request upto 10-2-1969 and that the defendant was to use that Property as licensee and permission was granted till that date. It was also stated that the suit property was to be handed over to the plaintiffs on or before 10-2-1969 and it was further mentioned that a cheque for a sum of Rs. 50 0 was handed over to the plaintiffs by the defendants as a deposit for due performance of that assurance. The document further provided that if vacant possession was not handed over on due date and the plaintiffs had to go to the court for obtaining possession an amount of Rs. 50 0 which was kept as deposit would be forfeited as damages licence fee and for breach of the contract. It was further provided that till vacant possession was handed over a sum of Rs. 1 0 per month would be paid as mesne profits from 10-2-1969 if possession was not handed over on that date. It was also provided that fans geyser electric motor fixtures and fittings were to be kept in the same condition in which they were and the plaintiffs were owners and the defendant would keep them in good condition and upto 10-2-1969 those fixtures geyser electric motor etc. are given to the defendant for use on request and no charge was to be taken for the use of those articles. It was also provided that if vacant possession was not handed over on 10-2-1969 mesne profits of Rs. 1 0 per month which was fixed would also include mesne profits. for the above fixtures. The document further provided that for a period beginning from 18-5-1968 to 10-2-1969 the suit property was given for use and for the use of that property no damages or licence fee was to be charged. the document also provided that the plaintiffs would keep a sum of Rs. 50 0 as deposit and would not pay any interest on that amount from 18-5-1968 to 10-2-1969 and if possession was not handed over on 10-2-1969 an amount of Rs. 50 0 would stand forfeited and therefore the question of paying any interest over that amount after that period would not survive. The last clause provided that if possession was handed over on any date prior to 10-2-1969 the deposit amount of Rs. 50 0 was to be returned and receipt obtained. Now this is a document which is required to be interpreted and according to the plaintiffs this is a document which creates a license while according to the defendant this document creates a lease in his favour. On behalf of the plaintiffs plaintiff no. 1 gave his evidence at Exh. 120 Hargovind broker is examined at Exh.133 and the scribe of the document Jayasukhlal Pathak is examined at Exh. 134. A clerk from the office of the Sub-Registrar is examined at Exh. 139 and Vrajlal Kanji Administrator of the property of Mrs. Vijaygauri is examined at Exh. 135. The defendant gave his evidence at Exh. 142. Prior to filing of the suit there is notice correspondence and the first notice is given by the plaintiffs to the defendant and it is at Exh. 89 dated 14-2-1969. In that notice the plaintiffs stated that they had purchased the property and that the defendant was occupying the said premises as licensee from 18-5-1968 till 10-2-1969 as per the terms of the license. It is also mentioned that the term of licence expired by afflux of time. Further mention was that inspite of repeated demands as vacant possession was rot handed over on or before 10-2-1969 a breach of contract was committed and the amount of Rs. 50 0 deposited by the defendant with the plaintiffs for fulfillment of the contract had been adjusted as licence fee for the use and occupation of the suit building together with electric fittings and fixtures from 15-8-1968 to 10-2-1969 as well as had been adjusted towards compensation and damages for committing breach of the contract as per terms of the agreement. It was specifically stated that that amount was forfeited and the defendant had no right to recover the same from the plaintiffs. The defendant by that notice was treated as the trespasser and he was asked to hand over possession. A detailed registered notice was sent on the same day which is produced at Exh. 90. The reply given by the defendant by telegram is Exh. 92 and the reply given by post is at Exh. 93. The defendant took up a stand that no possession was handed over when the sale-deed was executed and the sale-deed dated 18-5-1968 was incomplete for want of full consideration. Therefore the sale-deed was infructuous invalid vague and not binding. It was sLated that the sale price contracted was Rs. 1 10 0 while the defendant received only Rs. 60 0 Under these circumstances according to the defendant there was no question of breach of contract and no question arose for handing over possession of the suit premises. Now it may here be stated that in the notice correspondence the defendant did not take up the plea that he was a tenant. According to the notice correspondence the case of the defendant was that the plaintiffs never became owners and possession was never handed over to the plaintiffs and that the defendant continued to be the owner inasmuch as full consideration was not paid. For the first time the defendant took up the contention in the written statement- Exh. 115 that he was a tenant. That was also an alternative plea. In the written statement also the first contention was that the plaintiffs were not owners as consideration was not fully paid and possession was not handed over. Alternatively however the defendant took up the contention that he was a tenant.

(3.) Now plaintiff no. 1 who gave his evidence at Exh. 120 stated that after the sale-deed was executed and handed over to the Sub-Registrar for registration the parties went to the suit property and it was for the purpose of obtaining possession. At that point of time according to plaintiff no. 1 the defendant made a request that on the adjoining plot he was constructing the house and it was likely to be completed within a period of nine months. That therefore he should be given time for nine months for handing over possession. According to plaintiff no. 1 the defendant is a Barrister-at-Law and he is practising at Rajkot. He trusted defendants word and ultimately the document at Exh 123 9/as entered into. The learned advocate Shri Mehta submitted that though in the agreement of sale Exh. 121 it was mentioned that vacant possession was to be handed over within sixty days and though in the sale-deed Exh. 122 it was mentioned that vacant possession was handed over and though in exhibit 123 it was mentioned that vacant possession was handed over to the plaintiffs in reality the defendant continued to be in possession. According to the learned advocate Shri Mehta the defendant continued to be in possession and his possession was exclusive and as the defendant was in exclusive possession interest in the property was created and therefore the defendant became a tenant. The learned advocate Shri Mehta cited four rulings which we will refer in order to appreciate his arguments and the evidence on record.