FATIMABEE Vs. KAMRUNISA

JUDGEMENT

(1.) Heard the learned Counsel for the respective parties.

(2.) The petitioners have questioned validity and legality of the Judgment and Order, dt. 28.2.2005 passed by learned Judge, Small causes Court, Nagpur in Regular Civil Suit No.411 of 2002, which resulted in decree for possession. Learned trial Judge found that defendants nos. 1 to 4 illegally sublet the suit premises. Defendants were directed to deliver possession and inquiry into mesne profits under Order XX, Rule 12 of the Code of Civil Procedure was ordered from the date of suit till delivery of possession. Regular Civil Appeal No.111 of 2007 preferred by the defendants was dismissed on 7.1.2008 by learned Adhoc District Judge7, Nagpur. The Appellate Court found that tenancy of defendants was liable to be forfeited.

(3.) The dispute related to southern block of two rooms 40 feet X 9 feet with court yard in the Corporation House No. 1049 (old House No.443/2) in Ward No.110 (old ward No.52), Circle No.17/23, Mominpura, Nagpur. It was owned by late Sugrabi W/o Hakim Mohammad Mukhtar. It was let out to late Abdul Raheman (predecessor of the petitioners) by her. It is found from the facts noticed by the Courts below that Sugrabi had sold the suit property to the plaintiffs in the case; the plaintiffs sued the defendants as landlord/owner of the suit property acquired under registered Sale deed, dt.18.2.1991 (Exh.39) and the defendants had refused to attorn their tenancy and denied relationship of landlord and tenant and unsuccessfully tried to dispute title of their landlord while occupying the suit premises and then unauthorisedly subletting the suit premises, that too without paying rent to the plaintiff/landlord. The rent remained in arrears despite demand notice (Exh.31) served upon the defendants by landlord demanding arrears of rent. Defendants did not give any reply to the notice from the plaintiff-landlord. Regular Civil Suit No.1351 of 1992 was instituted by the defendants to claim specific performance of the agreement alleged, but the suit failed and was dismissed. The dismissal of the suit filed by defendants attained finality. They were found having inducted defendant no.5 as a subtenant. On behalf of the petitioners, it is submitted that conduct of the defendants amounted to forfeiture of tenancy as they denied the title of the landlord and incurred risk of forfeiture/termination of tenancy in view of Section 111(g) of the Transfer of Property Act and by creating subtenancy in favour of the fifth defendant forfeiting their status as tenants, withholding possession of the suit premises wrongfully and unlawfully without paying rent.