MAHADEO GOVIND JADHAV Vs. ASHOK RAMNARAYAN KANDELWAL

JUDGEMENT

(1.) AGAINST a judgment and decree for vacant possession of open plot admeasuring 10" x 15" in the town of Igatpuri, District Nasik, the original defendants have filed this Second Appeal.

(2.) BY a registered lease, dated 21st November, 1924, the property in question was taken on permanent lease by deceased Mahadeo Govind Jadhav predecessor-in-title of the appellants-defendants. In February 1972, deceased ramnarayan, the predecessor-in-title of the respondents-plaintiffs gave a notice exercising right of forfeiture on the ground of non payment of rent for 20 years and determining the lease on that ground. The said notice, (Exhibit 38), was duly received by deceased Mahadeo on 23-2-1972. There was a reply denying the contents of the notice, but not offering to pay the arrears of rent. On 29th April, 1972, a suit for possession and arrears of rent amounting to Rs. 900 was filed. On 1st November, 1972, the defendants filed a Written Statement contesting the suit and on the same day filed an application (Exhibit 14) for permission to deposit a sum of Rs. 1505 in the civil Court. One of the defence raised in the Written Statement was about the applicability of the Bombay Rent Act, but it appears that the said point was given up as is apparent from the fact that no issue was framed and defendants made no grievance on that score. Indeed, learned Counsel for the defendants made a submission that the provisions of the said Act did not apply since it was a permanent lease and that only the provisions of Section 114 of the Transfer of Property Act would apply.

(3.) NONE was examined as a witness on behalf of the plaintiffs. The defendants adduced documentary as well as oral evidence. In the evidence the case made out was that the rent for 20 years was in fact paid prior to the notice, though no such case was made out in the Written Statement. Both the Courts below, on appreciation of evidence, have come to the conclusion that the defence about actual payment of 20 years rent prior to the filing of the notice was clearly an after-thought. Having regard to the totality of the background including the non-payment of rent at-least for a period of 2 years and some months even during the pendency of the suit, the trial court granted a decree for possession by removing the structure. Equity, falsity of the defence were all taken into consideration while granting the relief to the plaintiffs. It may be mentioned that in the agreement of lease, it is provided that for non-payment of rent, the landlord is entitled to the relief of forfeiture and on that basis a right to re-enter the land. It is an undisputed position that this provision in the agreement is not inconsistent with any of the provisions of the Bombay Rent Act,