(1.) BY this petition, the petitioners challenge the order dated 30th January 1986 passed by the Addl. Dist. Judge, Satara in Civil appeal no. 50 of 1981. That appeal was filed by the respondents no.1 and 2 challenging the judgment and decree passed by the Ist Jt.Civil Judge J.D.Satara dated 18th March 1980 in Regular Civil Suit No.146 of 1976. That civil suit was filed by the petitioners stating therein that the petitioners are owners of CTS No.173 area about 5278 sq. yards of Satara and that the petitioner no.1 is a lessee of this property. The ground which is relevant for the decision of this petition is that, when the lease of the property was granted by the predecessors in title of the petitioners by name Satyabhama in favour of Pandharinath Waman Ghanekar who is predecessor in title of the respondents by lease deed dated 20th February 1926, on the suit property there was a structure admeasuring 35 feet x 23 feet. The petitioner alleged that this structure is no more in existence and it has been demolished by the tenant and therefore, a decree was sought against the tenant under section 13(1)(a) of the Bombay Rent Act. The trial Court found in favour of the landlord and decreed the suit in their favour and directed the tenant to vacate the suit premises. In the appeal filed by the tenant, however, the appellate court reversed the findings recorded by the trial court, allowed the appeal, set aside the judgment and decree passed by the trial court and dismissed the suit. Therefore, in this petition filed by the landlords, it is this order of the appellate court which is challenged.
(2.) SHRI Dalvi, the learned counsel appearing for the petitioner urged before me that it is an admitted position between the parties that in the lease deed dated 20th February 1926, there is a clear cut mention that on the suit property a structure admeasuring 35 feet x 23 feet is standing. It is also an admitted position that that structure was not in existence when the suit was filed. Shri Dalvi submitted that as it is an admitted position that the structure was in existence when the lease was created and when it is an admitted position that the structure ceased to exist when the property was exclusively in possession of the tenant, the only inference possible is that the tenant has demolished the structure. Shri Dalvi submitted that as the tenant at no point has taken any steps to inform the landlord that the structure is in a dilapidated condition as there is no plea raised in the written statement that because the structure was old and in dilapidated condition, therefore it has fallen down, the only inference possible was that the structure is demolished by the tenant. Shri Dalvi submitted that reasoning adopted by the appellate Court that because there is no mention of the structure when the lease hold rights in the property were assigned by the original tenant in favour of his assigns as also subsequent trust deed, it has to be assumed that the structure was not in existence when the leasehold rights were created in favour of the present tenants and therefore, they cannot be held responsible, is perverse. He submitted that the respondents are the assigns of the original lessee and therefore, even if it is assumed that the structure was demolished by the original lessee then also the respondents cannot escape the responsibility for the action of their predecessor.
(3.) NOW it is clear that in the lease deed dated 20th February 1926, there is a clear recital that the structure admeasuring 35 feet x 23 feet is in existence on the suit property. It is also an admitted position that the structure was not in existence when the suit was filed. The landlords in their plaint, have alleged that the tenant has demolished that structure. In the written statement, apart from denying the allegations, the tenants have not come out with any positive case. In the written statement, it is not the case of the tenants that the structure is not demolished by them but it has fallen down because it was an old structure and was in dilapidated condition. In my opinion, if the structure was in existence when the property was given in exclusive possession of the tenant in terms of provisions of section 108(O) of the Transfer of Property Act which is incorporated in the Bombay Rent Act, by virtue of the provisions of Section 13(1)(a) of the Bombay Rent Act, it was duty of the tenant to protect the structure, as any ordinary prudent man would protect the structure had the structure been his own. Therefore, if the structure was in dilapidated condition, it was the duly of the tenant to issue notice to the landlord or to take other appropriate steps to protect the structure. In any case, as observed above, it is nobody's case that the structure was in dilapidated condition and therefore, it has fallen down. Admittedly structure was in existence when the lease was created and admittedly it is not in existence when the suit was filed and it goes without saying that the tenants-respondents are in exclusive possession of the property. Therefore, in the absence of any allegation that the structure was in dilapidated condition and as the structure is admittedly not in existence the only possible inference is that it is the tenant who has demolished the structure. In so far as the reasoning adopted by the appellate court that because the structure is not mentioned in the document to which the landlord admittedly is not a party, an inference has to be drawn that the structure was not in existence when the leasehold rights were assigned to the present lessee, in my opinion, is rightly described by Mr.Dalvi as perverse. Whether the structure is mentioned in the document created by the original lessee and his assigns, can have no bearing in so far as the case of the landlord is concerned. In my opinion, even if it is assumed that the structure ceased to be in existence before the leasehold rights were assigned in favour of the present tenants then also, as the present tenants got leasehold rights they also got liability to be evicted for demolition of the structure from the original tenant. By assignment, the tenants cannot take merely leasehold rights without liability of being evicted for any conduct of their predecessor in title while he was the lessee. In any case, as stated above, it is not the case pleaded in the written statement by the respondents that the structure ceased to exist before the leasehold rights were assigned to them. In these circumstances, therefore, in my opinion, the appellate court was not at all justified in disturbing the findings recorded by the trial court and setting aside the decree of eviction passed by the trial court.