JUGALKISHORE KANHAYYALAL KHANDELWAL Vs. RADHESHYAM BIHARILAL KHANDELWAL

JUDGEMENT

(1.) A Small Cause Civil Suit No. 40 of 1990, filed by the respondent/plaintiff for eviction of the petitioner/defendant as a tenant from the suit premises on the ground of forfeiture of tenancy under section 111(g)(2) of the Transfer of Property Act, 1882, was dismissed by the learned Second Joint Civil Judge, Junior Division, Achalpur, by his judgment and order dated 23-7-1998. In Regular Civil Appeal No. 143 of 1998, preferred by the respondent/plaintiff, the learned Additional District Judge, Achalpur, by its judgment and order dated 10-2-2004, set aside the judgment and decree passed by the trial Court, dismissing the suit and passed a decree for possession of the suit property in favour of the respondent/plaintiff. This is the subject-matter of challenge in this petition at the instance of the petitioner/defendant who claims to be the tenant. An undisputed factual position appearing from record is that a joint family of plaintiff/respondent's father Biharilal himself, consisted of the petitioner/defendant's father and one Zumbarlal. The Regular Civil Suit No. 38-A/52 was filed for partition and separate possession in which the property in question fell to the share of the plaintiff/respondent's father. The decree was placed on record at Exh.50. Shri Biharilal the father of the plaintiff/respondent let-out the premises in question on rent to the petitioner vide lease deed Exh.51. The plaintiff/respondent served a notice at Exh.55 upon the petitioner/defendant, calling upon him to pay the arrears of rent. In response to it, the petitioner/defendant sent a reply at Exh.57 denying the lease deed and claiming himself to be the owner and in possession of the property in question. The plaintiff/respondent issued notice under section 111(g)(2) of the Transfer of Property Act, 1882, for forfeiting the tenancy i.e. at Exh.58.

(2.) In the light of these documents and the evidence brought on record, the trial Court took a view that the wording in the reply notice at Exh.57, that the suit shop was continued to be in possession as per original ownership cannot be said to be in strict sense the denial of title of plaintiff, because originally the suit property was owned by all three brothers jointly. In subsequent paras, it has been held by the trial Court that the plaintiff has failed to prove that the defendant in clear and unequivocal terms denied the title of the plaintiff and has thereby incurred the forfeiture. The Appellate Court reversed the said findings of fact and it has been held that in spite of lease agreement at Exh.51, the petitioner/ defendant has not paid the rent in respect of the suit premises to the respondent/plaintiff in spite of demand by notice at Exh.55. It is the finding recorded that Exh.55 has been admitted by the petitioner/defendant. On reading the contents of Exh.57 the reply notice, it has been held that there is a specific stand taken by the petitioner/defendant, that he had never executed the rent note in respect of the suit shop in the year 1966 in favour of Biharilal. It has been held that the petitioner/tenant has not only renounced his character as tenant in the suit premises but has set-up title of suit premises in himself and hence, it is the case of forfeiture of tenancy.

(3.) With the assistance of the learned Counsels appearing for the parties, I have gone through the documents on record Exhs.51, 55, 57 and Exh.58. The contention of Shri H. S Warulkar, the learned Counsel appearing for the petitioner, that the so-called admission of the petitioner that he is not the tenant in respect of the suit premises and that he is the owner himself of the suit premises is not in unequivocal terms, cannot be accepted. The contents of Exh.57 reply clearly establish that the petitioner/tenant has renounced character as a tenant, failed to pay the arrears of rent in spite of demand and has set-up the title in respect of the premises in himself. Hence, no fault can be found with view taken by the Appellate Court on interpretation of the reply at Exh.57. If the petitioner has deposited any amount towards occupation charges in this Court or in the trial Court pursuant to the orders passed by this Court on 12-1-2007, then the respondent is permitted to withdraw the said amount along with interest, if any accrued thereon. In view of above, no interference is called for. The Writ Petition is dismissed. No order as to costs.