CHANDRAKANT YESHWANT PARDESHI Vs. LAXMINARAYAN THEATRES PRIVATE LIMITED

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the judgment and decree passed by the IV Additional District Judge, Pune dated September 12, 1986 in Civil Appeal No. 403 of 1984.

(2.) THE subject matter of the present petition is property bearing Survey No. 1256/2-A of final Plot No. 621/2-A admeasuring about 1100 sq. ft. situated at Pune. The said property was originally owned by one Vasundhara Gharpure. The said Vasundhara Gharpure leased the open plot of land to the original petitioner No. 1 Chandrakant Yeshwant Pardeshi by a written lease deed dated 9th August, 1950 (Exhibit 58) for a period of 20 years. The subject property was subsequently purchased by the respondents herein on 15th March, 1972 by a registered sale deed from the said Vasundhara Gharpure. The respondents accordingly became the owners of the property but the said Chandrakant Yeshwant Pardeshi continued to occupy the property. It is relevant to note that though the lease in favour of said Chandrakant Pardeshi had expired in the year 1970, the original owner allowed him to occupy the said property. In that sense, the said Chandrakant Pardeshi became the statutory tenant. After the subject property was purchased by the respondents, they issued notice to the said Chandrakant Yeshwant Pardeshi on 11th December, 1976 and terminated his tenancy in respect of the subject property. The respondents thereafter instituted the suit being Suit No. 3016 of 1977 against the said Chandrakant Pardeshi for possession on the ground of default, bona fide and reasonable requirement for construction work for business and on the ground of breach of terms and conditions of the tenancy agreement on account of change of user of the premises for residential purpose. As mentioned earlier, when the property was leased out to the said Chandrakant Pardeshi, the same was an open plot of land. The lease however, permitted him to start a Motor Service Station thereon and for that purpose he could construct structure on the suit property. According to the landlords, therefore, the said Chandrakant Pardeshi committed breach of the terms and conditions of the tenancy by using the subject property for residential purpose as well. While the said suit was pending before the Rent Court, the said Chandrakant Pardeshi executed a deed of assignment dated June 18, 1979 in favour of one Prabhakar Purshottam Joshi original petitioner No. 2 (hereinafter referred to as the petitioner) where under the said Chandrakant Pardeshi purported to transfer his business of Motor Service Station alongwith tenancy rights to the petitioner. In view of this development, the respondents-landlords instituted another suit before the Rent Court for recovery of possession of the subject property being Civil Suit No. 2117 of 1979 against both i. e. Chandrakant Pardeshi and the petitioner. The present writ petition emanates from the later suit filed by the respondents. In the subject plaint as presented before the Rent Court, it is averred that the said Chandrakant Pardeshi at the relevant time was a statutory tenant and, therefore, he had no right to transfer or assign. It is further averred that the said Chandrakant Pardeshi tenant has acted contrary to the terms and conditions of the tenancy agreement which prohibited him from transferring and/or creating any assignment. In the plaint, it is further averred that, subject document titled as "assignment deed" is a bogus and fraudulent document created under the guise of transferring the business and goodwill alongwith the suit property. It is averred that the same is void ab initio. It is further averred that on the relevant date there was no subsisting goodwill. Both the defendants filed written statement. The petitioner defendant No. 2 in his written statement took a specific stand that, even as a statutory tenant, the tenant-defendant No. 1 had a right to assign the running business alongwith stock in trade and goodwill and interest in the premises. In support of this plea reference is made to a decision of this Court. The specific case made out by the petitioner is that the tenant defendant No. 1 has assigned a running business alongwith stock in trade and goodwill and the interest in the premises in his favour. On the basis of above pleadings the parties went to the trial before the Rent Court. As observed earlier, the former suit filed against the tenant-Chandrakant Pardeshi was also pending before the same Rent Court and therefore, both the suits were tried and heard together. In so far as the present suit is concerned, the trial Court framed the following issues:

(3.) THE trial Court by its judgment and decree dated February 27, 1984, was pleased to decree the suit preferred by the respondents and ordered that the defendants do deliver the vacant possession of the property in suit to the plaintiffs and defendant No. 1 to pay Rs. 5375/- with proportionate costs of the suit to the plaintiffs. The trial Court, relying on the legal position as it obtained then, reported in (Tatoba Krishna Hargude, since deceased by his legal heirs and legal representative v. Dikkaya Mottaya Pujari)1980 Bom. C. R. Page 1, (Atlas Trading Co. v. Official Assignee of Bombay) 1983 Mh. L. J. Page 740, (Anand Nivas Private Ltd. v. Anandji Pedhi) A. I. R. 1965 S. C. Page 414, and (Bhawanji Lakhamshi v. Himatlal Jamnadas Dani) A. I. R. 1972 S. C. 819, held that a statutory tenant had no right to transfer or create any assignment. This decision was assailed by the petitioner alongwith the tenant Chandrakant Pardeshi by filing appeal being Civil Appeal No. 403 of 1984. The Appellate Court by the impugned judgment and decree dated September 12, 1986 has dismissed the said appeal and affirmed the order passed by the trial Court decreeing the suit against the defendants. The appeal Court, inter alia, found that there was absolutely no evidence to hold that the subject assignment was created in respect of a running business or a going concern with stock in trade and goodwill. Besides that, the Appellate Court found that the transfer or assignment was contrary to the stipulation contained in the tenancy agreement between the tenant and the erstwhile owner which prohibited him (tenant) from transferring and/or creating assignment in the suit property. Accordingly, the Appellate Court has returned a clear finding of fact that the purported transfer or assignment was not in respect of a running business alongwith stock in trade and goodwill. Consequently, the Appellate Court has affirmed the decree for possession passed by the trial Court. The above said concurrent decisions are the subject matter of challenge in the present petition under Article 227 of the Constitution of India.