VISHWAS BALU Vs. GHASIRAM RAMRATAN JAJUM

JUDGEMENT

(1.) The petitioners who are the legal representatives of the original tenant Balkrishna Jagtap, have approached this Court under Article 227 of the Constitution of India impugning the decree made by the learned District Judge, Sholapur., in Civil Appeal NO.380 of the 1969 on affirming that of the learned Civil Judge , Junior Division, Barasi, in Regular Civil Suit No.41 of 1968.

(2.) The few facts necessary for the disposal of the application could be briefly stated thus: The property in dispute is C.T.S. No.2514 situate on the Station Road at Barsi in District Sholapur. The original defendant No.1. since deceased had taken it on lease for a period of eleven months under a rent note Ex. 53 dated 17th December 1960. The rent agree upon was Rs.25 per month. Respondent No.1 landlord terminated the tenancy of the tenant by a notice dated 2nd August 1967 and claimed possession mainly on the ground of default in payment of rent from March 1966 to July 1967, change in the user of the premises leased out, erection of permanent structures which were about three in number and taking a water pipe connection without the landlord's consent, obtained in writing and unlawful sub-letting. The suit came to be filed on 23rd January, 1968. The short answer made by the defendant-tenant was a stout denial of the various grounds on which possession was claimed, accompanied by a further submission that the landlord had agreed to sell the suit property to him for a consideration of Rs.4,000 or Rs. 5,000. The terms of agreement were set out on a chit of paper but they were to be reduced on a stamped paper which was purchased on 17th April 1964. Under the terms of the agreement were set out on a chit of paper but they were to be reduced on a stamped paper which was purchased on 17th April 1964. Under the terms of the agreement the price was fixed at Rs. 5,000. Rs. 2,000 were paid by way of earnest and the balance was to be paid before the Sub-Registrar., The period prescribed for obtaining the sale-deed was eleven months., However, it contained an important clause that till the sale was completed, the tenant was go on paying the rent. The tamped paper was purchased in plaintiff's son's name, but before a regular deed could be drawn, defendant No.1 died and the matter rested there. It is needless to refer to the other defences taken by the tenant. The learned Civil Judge framed as many as eleven issued and found almost all of them in favour of the landlord. On the turning point regarding the agreement of sale, he was inclined to uphold the plea but felt that the tenant had failed to establish his readiness and willingness; therefore, the doctrine of part performance could not run to his rescue. The standard came to be fixed at Rs. 25 per month, probably on the concession made by the tenant during the trial. As all the points were answered against the tenant, a decree the petitioners preferred an appeal, but the learned District Judge in a refreshingly brief judgment formance and for that purpose he mainly relied upon the last clause mentioned in the chit that the tenant was to pay the rent till the execution of the sale-deed and as there was non-payment of rent, in his opinion, it could be said that the tenant were not ready and willing to perform their part of the contract. He proceeded to observe further that the tenants had disclaimed the ownership; of the plaintiff and therefore the protection under the Rent Act was not available to them. On such considerations he thought that the decree passed by the lower Court was pre-eminently correct and the appeal had no force. Consequently he confirmed the decree and against this decree the tenants have approached this Court.

(3.) Mr. Sali for the petitioners has raised a preliminary objection not only to the approach made by the learned District Judge but to the form of his judgment and failure to comply with the requisitions of an appellate judgment mentioned in Order 41, Rule 31 of the Code of Civil Procedure. The next point taken by him was that the landlord had approached the Court in a suit for ejectment founded on various grounds covered by Section 12 and 13 of the Bombay Rent Act. Evidence was adduced by both the sides in the lower Court and all the points were canvassed at great length, but the learned District Judge had not made even a passing reference either to findings on the various issues or otherwise. The theory of disclaimer on reading out the relevant portion of the written statement pointed out Mr. Sali, was introduced by the learned District Judge for the first time without any whisper on the part of the tenants. What the tenants contended was that in view of the agreement of sale in their favour on which they relied, they had a right to retain possession and virtually they were claiming under the landlord and not against him. The question of disclaimer, under such circumstances, cannot arise, but it has been misunderstood by the learned District Judge. While winding up his argument he submitted that even if he were to fail under S.53-A of the Transfer of Property Act, on the doctrine of part performance it could not be said that it is his only shield of defence. But there are other grounds of attacks put forth by way of answer to the points on which possession is claimed and they are not decided by the learned District Judge. The first appellate Court is a final Court on the questions of fact and when it has failed in its duty, the judgment would be patently erroneous on the face of it. In Support of such a line of argument he brought to my notice the authority in Nagayya v. Chayappa, 58 Bom LR 144 = (AIR 1956 Bom 560). While meeting his argument Mr. Naik for the respondents landlords tried to persuade this Court that ignoring all aspects, if the landlords were to convince the Court on a single point of default, the decree deserves to be maintained. Although the dispute about standard rent was raised in the written statement, it was abandoned during the course of the trial. The finding of the lower Court that the tenant was in arrears of rent to the tune of Rs. 550 i.e. for a period of more than six months, stands unassailed. The case may be covered by Section 12(3) (b) of the Bombay Rent Act, but the tenant has not qualified to the protection thereof and it the landlord can on the record as it established, there is no necessity to set aside the judgment of the learned District Judge or make an order of remand as pressed into service by Mr. Sali.