REPORTABLE

  IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 9834 OF 2016

Rameshchandra Daulal Soni & Anr.      .… Appellant(s)       

Versus

Devichand Hiralal Gandhi (Dead)                  ….Respondent(s) Thr.Lrs. Smt. Gulabbai Devichand  Gandhi & Ors.

WITH  

CIVIL APPEAL NO.8450/2019

J U D G M E N T

A.S. Bopanna,J.

1.   Though different orders,  dated 20.07.2015 passed  in

CRA No.112/2012 and dated 15.10.2018 passed in CRA

No.157/2018 are  assailed in these  two appeals, issues for

consideration however arise out of the common lis between

the parties based on the judgment passed in the Regular Civil

Suit No.253/1989 to which the appellants in C.A.

No.9834/2016 were defendants No.1 and 2 while the

                                                                                                                     Page 1 of 26

predecessor of appellants in C.A. No.8450/2019 was

defendant No.5.   Hence both these appeals were taken

together for hearing and are being disposed by this common

judgment.  For the sake of convenience and clarity the parties

would be referred in the same rank assigned to them in the

suit.  Since the claim of the appellants in C.A. No.8450/2019

is in the capacity  of legal representatives of the  deceased

original defendant No.5, the case put forth by them will be

considered by referring to them as defendant No.5.

2. The brief  facts noticed for the purpose of disposal of

these appeals is as hereunder.   The property bearing S.No.

9/1/A measuring 22 guntas situate at Chahurana Bk.,

Taluka Nagar, Ahmednagar District presently bearing Plot

No.19 within Ahmednagar Municipal Limits, measuring 2656

sq mtrs (hereinafter referred to as the ‘suit property’) which

earlier belonged to Deshmukh Brothers was purchased by the

plaintiff under a Sale Deed dated 08.08.1986.   The plaintiff

thereafter secured the Revenue entries to be recorded in his

name.   As on the date of purchase the predecessor of

defendants No.1 and 2 was the tenant in respect of the suit

                                                                                                                     Page 2 of 26

property paying the rent of Rs.31/­ per annum.   The

defendants No.1 and 2 thereafter continued as the tenants.

The plaintiff informed the defendants No. 1 and 2 through the

communication  dated  06.12.1986  about the  purchase  and

had sought for payment of the rents.   The defendants No. 1

and  2 failed to  pay the same  and since  according to the

plaintiff the defendants were also not using the premises for

the purpose for which it was let out, the plaintiff termed the

defendants No. 1 and 2 as defaulters and instituted the

Regular Civil Suit No.253/1989 seeking eviction of the

defendants  No.  1  and 2  as  also the  defendants  No.3 to  7

whom the plaintiff described as the sub­tenants in the

premises.

3. The defendants in the suit were issued with the suit

summons.   The defendants No. 1 and 2 appeared and filed

their respective written statement.  The defendants No. 3 and

5 did not choose to file the written statement while the

defendants No.  4,  6 and 7 did not appear before the Trial

Court and were therefore, proceeded ex­parte.   The

defendants No. 1 and 2 opposed the claim made in the plaint

                                                                                                                     Page 3 of 26

on merits, apart from contending that the suit was barred by

limitation.  The fact that their  predecessor  had taken the

premises under lease deed dated 22.05.1928 for a period of

31 years on the annual rent of Rs.31/­ was admitted and that

the lease deed expired by efflux of time on 22.05.1959 was

also stated. The said defendants however contended that they

were not informed about the purchase by the plaintiff.   The

Trial Court based on the rival pleadings had framed as many

as eleven issues.   The  parties in order to  discharge their

burden cast under the issues had tendered evidence.   The

Trial  Court  by its judgment  dated  13.10.1998 decreed  the

suit and directed the defendants No.1 to 7 to handover actual

physical possession of the suit property and also to pay the

amount of Rs.162/­.   Further, enquiry regarding mesne

profits was also ordered.  The defendants No.1 and 2 claiming

to  be  aggrieved  by the said judgment  preferred  an  appeal

before the Principal District Judge, Ahmednagar in Regular

Civil Appeal No.315/1998.   The Appellate Court having

adverted to the rival  contentions has dismissed the appeal

through the judgment dated 18.02.2012. The cross objections

filed by the plaintiff and the defendants No.2 to 6 was also                                                                                                                       Page 4 of 26

dismissed.   The defendants No.1 and 2 claiming to be

aggrieved by the said judgment were before the High Court of

Judicature at Bombay, Bench at Aurangabad in CRA

No.112/2012. The High Court having taken note of the rival

contentions has by a detailed order  dismissed the revision

application.   The analogous Civil Revision Applications filed

by the remaining defendants in CRA No.113/2012 and

114/2012 were also disposed of by the same common

judgment dated 20.07.2015.  It is in that background, the

defendants No.1 and 2 claiming to be aggrieved by the

concurrent  judgments are before this Court  in this appeal.

The connected appeal in C.A. No. 8450/2019 is against the

order dated 15.10.2018 arising out of execution proceedings

in regular darkhast No. 15 of 2016.

4. We have heard Mr. Siddharth Bhatnagar, learned

senior advocate for the appellants in C.A. No.9834/2016

(defendants No.1 and 2), Mr. Siddhartha Dave, learned senior

advocate for the appellants in C.A. No.8450/2019 (legal

representatives of defendant No.5) Mr. Uday B. Dube, learned

                                                                                                                     Page 5 of 26

counsel for the respondent (plaintiffs in the suit) and perused

the appeal papers.   

5. As noticed, the suit in question was filed by the

plaintiffs seeking eviction of the defendants No.1 and 2 who

were the tenants and also the remaining defendants  who

were described as the sub­tenants.   Before adverting to the

nature of contentions put forth by the respective learned

senior advocates for the defendants which is emphasised on

the very maintainability of the suit, it is necessary to, at the

outset, take note of the nature of consideration made by the

Trial Court which has been upheld by the Lower Appellate

Court and the High Court respectively.  The nature of the

contentions put forth by the parties is adverted to above.  On

the rival pleadings to that effect the Trial Court framed the

following issues which read as hereunder:

ISSUES 1. Does the plaintiff prove that there is relation of tenant and  

landlord between the defendant and himself ? 2. Does the plaintiff prove that defendants are wilful defaulter? 3. Whether suit notice given by the plaintiff is legal and valid? 4. Does the plaintiff prove that suit premises is not used by the  

defendants for more than 6 months before filing this suit  without reasonable cause?

5. Whether plaintiff proves that defendant Nos. 1 and 2 have  sub­let some portion of the suit premises to the defendants  Nos.3 to 7?

                                                                                                                     Page 6 of 26

6. Whether the suit is barred by Law of Limitation? 6A. Is the suit bad for mis­joinder of necessary parties? 6B. Is the suit properly valued stamped? 6C. Whether this Court has jurisdiction to try the suit? 7. What due towards the defendants? 8. Is plaintiff entitled to receive amount mentioned in para No.7  

of the plaint? 9. Is plaintiff entitled for actual physical possession of suit  

property from defendants Nos.1 to 7 after removing structure  thereon?

10. Is plaintiff entitled for damages from the defendants from  the date of suit till recovery of the possession?

11. What order and decree?

6. In the background of the  issues framed, the plaintiff

No.1 examined himself as PW­1 and the Trial Court has

taken note of his deposition as at Exhibit 78.  The manner in

which  the  plaintiff  had  acquired  right to the  property  has

been stated and the Sale Deed was also marked in evidence

as Exhibit 77/4.   The fact of purchase was informed to the

defendants No.1 and 2 through the notice dated 16.12.1986

which was marked as Exhibit 80.   The said notice was

essentially in the nature to attorn the tenancy whereupon the

defendants No.1 and 2 were required to recognise the plaintiff

as the landlord and pay the rent accordingly.   The fact that

the defendants No.1 and 2 were continuing as the tenants in

respect of the suit  schedule property under the lease deed

dated 16.07.1928 was also brought in evidence by marking                                                                                                                       Page 7 of 26

the same as Exhibit 100 whereunder the predecessor of the

vendors of the plaintiff had leased the property to the

predecessor of the defendants No.1 and 2.  The fact that the

lease was for 31 years was established and the Trial Court in

that regard had also taken into consideration that the lease

had come to an end by efflux of time as contemplated under

Section 111 of the Transfer of Property Act.   In that

circumstance, the defendants No.1 and 2 were considered to

be the statutory tenants under the Bombay Rents, Hotel &

Lodging Houses Rates Control Act, 1947 (‘Rent Act’ for short).

Thus, having determined the relationship of landlord and

tenant between the plaintiff and the defendant No.1 and 2 the

Trial  Court  proceeded to consider the other  aspects  of the

matter.  In that regard the provision as contained in Section

5(11) of the Rent Act was taken note.  

7. Insofar as the defendants No.3 to 7 though the

plaintiffs had contended that they are the sub­tenants under

the  defendants  No.1  and 2, in the  absence  of there  being

plausible evidence relating to subletting, the Trial Court

rejected the contention and held them to be the trespassers

                                                                                                                     Page 8 of 26

liable to be evicted and, in such event, directed all the

defendants to vacate.  Insofar as the ground on which the

eviction was sought, namely, the defendants No.1 and 2 had

failed to pay the rent and, therefore, they were defaulters and

also that the property was not being put to use for the

purpose which it had been rented out, the trial court

considered these aspects while answering issue Nos.2 to 4.

In that regard the notice issued by the plaintiff at Exhibit 96

and the postal receipts at Exhibits 97 and 98 was taken into

consideration whereby the plaintiff had demanded for

payment of the rents.  In that background the reply issued by

the defendants No.1 and 2 at Exhibit 99 was taken note and

the Court was of the view that the defendants No.1 and 2 did

not indicate their readiness and willingness to pay the arrears

of rent.  Further the evidence tendered by defendant No.1 at

Exhibit 106 was taken note wherein he had stated that the

rent had not been paid from the year 1959 as nobody had

demanded the rent from him.  While taking note of the same

the trial court  has taken into consideration that the said

statements of defendant No.1 cannot be accepted inasmuch

as the plaintiff in fact had issued the notice on 01.09.1988                                                                                                                       Page 9 of 26

whereby the demand had been made.  In that background the

default in payment of rent was accepted and held against the

defendants No.1 and 2.   

8. Insofar as the non­user of the premises for the purpose

which it had been rented out, the evidence to the effect that

the premises was given for the purpose of storage of goods

namely cotton was taken into consideration.   The fact that

there was a shed and the same not being put to use for the

last several years as it was in a dilapidated condition was also

taken  note.   Though a report of the Commissioner as at

Exhibit 10 was available on record the same was not taken

into consideration and relied upon for technical reasons.  Be

that as it may, the trial court has also taken into

consideration the deposition of  the defendant No.1 that he

has  been  practising as an advocate in the  High  Court of

Bombay and that at the point when the premises was taken

on lease the grandfather of defendant No.1 was doing

business  of cotton ginning factory  and  he  was  also  doing

business in foodgrain.  He had admitted that the business of

cotton ginning factory is closed due to ban imposed by

                                                                                                                     Page 10 of 26

Maharashtra  Cotton Act  and  the  premises is  not  used  for

storage of cotton but was being used for storing agricultural

equipments and cement.  In that view, the trial court had also

held that the premises was not being used for the purpose it

had been leased and accordingly the grounds on which the

eviction petition had been filed was upheld.   

9. On the contention relating to the defendants Nos.3 to 5

the same was considered while answering issue No.5 and as

indicated above though they were not accepted to be the sub­

tenants as claimed by the plaintiff, the trial court has held

that they are trespassers and not entitled to continue in the

premises.   The lower appellate court had taken note of the

evidence, reappreciated the same and in that background had

upheld the judgment passed by the trial court.

10. On the factual aspects of the matter though Mr.

Siddharth Bhatnagar, learned senior advocate sought to

assail the concurrent judgements, we notice that the evidence

available on record has been assessed by the trial court as

also the appellate court and have recorded a finding of fact

with regard to the relationship between the parties and also

                                                                                                                     Page 11 of 26

the ground on which the eviction had been sought.   In that

circumstance when we notice that such finding is with

reference to the oral evidence tendered and the documents

that were relied upon and marked before the trial court, the

finding of fact recorded cannot be considered as perverse so

as to  interfere  in a proceeding of the present nature.   The

learned senior advocate  would, however, contend that the

suit schedule property admittedly was leased to the

predecessor  of defendants  No.1  and  2  and in view of the

death of the original tenant the defendants No.1 and 2 have

been arrayed as parties.  It is contended that the defendants

No.1 and 2 had two sisters who were also the legal heirs of

the original tenant but not made defendants.  In that regard

it was contended that in a circumstance where the

predecessor  was  a  statutory tenant,  on  the  death  of such

statutory  tenant  the  tenancy  is inheritable  by all the legal

heirs and all of them were proper and necessary parties.  To

contend so the learned senior advocate has referred to the

provision contained in Section 5(11)(c)(ii) which reads as

hereunder:

                                                                                                                     Page 12 of 26

“In this Act unless there is anything repugnant to the subject or context.

(11) “rent” means any person by whom or on whose account rent is payable for any premises and include,

(c)(ii) in relation to any premises let for the purposes of education, business, trade or storage, when the tenant dies, whether the death has occurred before or after the commencement of the said Act, any member  of the tenant’s family  using the premises for the purposes of education of carrying on business, trade or storage  in the premises, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the Court.”  

11.    The learned senior advocate in that regard, to contend

that all the legal representatives of the statutory tenant would

be entitled to continue as tenants and that the High Court

has committed an error in holding that they are  not the

tenants in common, has referred to the decisions in the case

of  Damadi Lal & Ors. vs. Parash Ram & Ors.  1976(4) SCC

855 wherein inter alia it  is held that the statutory tenancy

under the Rent Act is heritable.   To the same effect the

decision in the case of Gian Devi Anand vs. Jeevan Kumar

                                                                                                                     Page 13 of 26

& Ors. 1985 (2) SCC 683 is relied upon.   Further, the

decision  in the  case  of  Uttam vs.  Saubagh Singh & Ors.

2016 (4) SCC 68 is relied upon to contend that when a male

Hindu  dies after commencement of  Hindu  Succession  Act

1956, and in view of the second exception engrafted on

proposition (i) is contained in the proviso to Section 6, which

states that  if  such a male Hindu had died  living behind a

female relative specified in class 1 of the schedule such

female relative surviving him would have interest in the

coparcenary property to contend that the statutory tenancy

being heritable with rights attached to it, the sisters of

defendants No. 1 and 2 are also entitled to such right.

12. Having taken note of the contentions put forth, to the

extent of the position of law as enunciated in the decisions

cited supra there can be no quarrel whatsoever.   However,

what is necessary to be taken note is the fact situation in the

instant case to arrive at a conclusion.   The provision in

Section 5(11)(c)(ii) noted supra is clear that the persons

carrying on the business with the statutory tenant at the time

of  death  would  be entitled to continue  as  a tenant.  The

                                                                                                                     Page 14 of 26

second part of  the said provision is that  in the absence of

such member  any  heir of the  deceased tenant  as  may  be

decided by the Court in default of agreement, would get the

right.  In the instant case the contention being urged that the

two daughters of the deceased tenants were also entitled to

be considered as the tenants under the statutory tenant, is a

belated claim as an afterthought.   As taken note while

considering the factual aspect it has come on record that the

plaintiff after having purchased the property under a

registered sale deed had issued the notice dated 16.12.1986

as at  Exhibit 80 and the trial court has also recorded a

finding that through the said notice the plaintiff had informed

the defendants No. 1 and 2 about the purchase of the suit

property.  That apart, subsequently a notice as at Exhibit 96

was  issued to the defendants No.  1  and 2  demanding  the

arrears of rent.   The said notice in fact had been replied by

the  defendants  No.  1  and  2 through  the reply  marked  at

Exhibit 99.   Neither at the first instance when the notice at

Exhibit 80 was issued was it indicated by the defendants No.

1  and  2 that their sisters  had also  become the statutory

tenants and the notice in the nature of attornment of tenancy                                                                                                                       Page 15 of 26

should be issued to them as well, nor in the reply which had

been issued when the arrears of rent was demanded did the

defendants No. 1 and 2 contend that they were not the only

one who were involved in the business along with the original

statutory tenant and, therefore, all the legal heirs had

succeeded as tenants on the death of the statutory tenant

and, therefore, the demand, if any, is to be made from all of

them.

13. Though such contention  is  put forth the  defendants

No.1 and 2 did not attribute any right in favour of the sisters.

In fact, as noted by the trial court the defendants No. 1 and 2

have filed on record pursis with a Exhibit 137­A claiming to

have deposited Rs. 1000/­ on 09.9.2007 at ‘C’ Register No.

465 without prejudice to their rights towards the rent, causes

of the suit etc.   This in our opinion would indicate that the

defendants No. 1 and 2 were claiming right  for themselves

and did not at that stage state about the right if any,

possessed by their sisters as well and have now raised the

contention as an afterthought.  Further in  the evidence of

defendant No. 1 he states that his grandfather took the suit

                                                                                                                     Page 16 of 26

premises on lease for the purpose of business of cotton

ginning factory and he further states that the defendant No. 1

used the premises to store food grain and equipment of

agricultural and also cement.   This would indicate that the

defendant was referring to the business being carried on by

him alone and there  is  no reference to the business being

jointly carried on with his sisters or that none of the legal

representatives  including defendant No. 1 were carrying on

business with the statutory tenant so as to   claim benefit of

the second part of Section 5 (11) (c) (ii) and claim joint

inheritance of tenancy.  Further the said position is also clear

from the evidence of the defendant witness Shri Vanaji

Dhoodiram Dani who was examined to indicate that the

premises was being used for the business and in that regard,

in the course of his evidence he has stated that the

defendants No. 1 and 2 are keeping cement and food grain in

the godown and that he is serving with the defendants 1 and

2 since last  10  to  12 years  but  has  not  stated about the

sisters also being  involved in the business.  If that be the

position even from the evidence of the said witness, it would

be clear that only first part of Section 5 (11) (c) (ii) would be                                                                                                                       Page 17 of 26

available and the sisters of  defendant No.  1 and 2 cannot

claim right merely due to the fact that they are the legal heirs

of the deceased tenant.  

14. That apart the suit had been filed in the year 1989 and

the same had crossed the stage of appeal as well as revision

before the High Court which had come to an end on

20.07.2015.  In none of these proceedings the said sisters of

defendants No.1 and 2 have taken any steps to get

themselves impleaded by contending that they are proper and

necessary parties failing which their right would be affected.

At this  stage  it is  necessary  to take note that the  learned

counsel for the  parties  have  brought to the  notice  of this

Court that the said two sisters have filed a Civil Suit bearing

No.516/2015 for declaration of their right which is pending

before the Civil  Court.   The very sequence noticed above

would indicate that the said sisters had not put forth their

claim earlier and the present suit appears to be a ploy to put

a spoke in the wheel on realising that the contention as put

forth  by  defendants  No.1  and  2  did  not yield the  desired

result inasmuch as the Civil Revision Application came to be

                                                                                                                     Page 18 of 26

dismissed in the year 2015.   Hence, neither the provision of

the Rent Act  or  the decisions relied upon supra will  be of

assistance to the defendants No. 1 and 2.   In that

circumstance the contention as put forth by the learned

senior advocate for the defendants No.1 and 2 is liable to be

rejected, which we accordingly do.

15. Mr. Siddhartha Dave, learned senior advocate for the

legal  representatives of  defendant No.5 would contend that

defendant No.5 was an agricultural tenant in respect of the

suit schedule property and as such the rights inter­se

between the parties is governed under the Maharashtra

Tenancy and Agricultural  Lands Act  (‘MTAL Act’ for short).

He contends that under the said Act there is a bar

contemplated under Section 85 of the Act against the Civil

Court entertaining any question which is required to be

settled, decided or dealt with by the Mamlatdar or Tribunal,

Manager, the Collector or the Maharashtra Revenue Tribunal.

In that view, it is contended that the suit schedule property

being an agricultural property, the Civil Court did not have

the jurisdiction.  The learned senior advocate has referred to

                                                                                                                     Page 19 of 26

a document at Annexure P­1, namely, 7/12 extract to

indicate that the name of the defendant No.5 is depicted as

tenant in respect of a portion of the suit schedule property.  It

is his further contention that in the lease deed dated

22.05.1928  (Annexure  P­2)  executed  by the  predecessor  of

the plaintiff in favour of  the predecessor of  the defendants

No.1 and 2, in Clause 6 thereof it makes a reference to the

existence of a hut of the agricultural tenant in the land and

that  it should be kept as it is and that the lessee will  not

obstruct them.  In that view,  it is contended that the said

document  would establish  that the land  in  question  is  an

agricultural land and the Civil Court ought not to have

entertained the  suit.   The learned  senior  advocate in that

regard has referred to the decision in the case of  Amrit

Bhikaji Kale and Ors. Vs. Kashinath Janardhan Trade

& Anr, (1983) 3 SCC 437 wherein it is held as hereunder:

“6. The  Tenancy  Act  was  comprehensively amended  by  Amending  Act  15  of  1957.  The amendment brought in a revolutionary measure of agrarian reforms making tiller of the soil the owner of the land. This was done to achieve the object  of  removing  all  intermediaries  between tillers  of  the  soil  and  the  State.  Section  32 provides  that  by  mere  operation  of  law,  every tenant of agricultural land situated in the area to

                                                                                                                     Page 20 of 26

which  the  Act  applies  shall  become  by  the operation  of  law,  the  owner  thereof.  He  is declared  to  be  a  deemed  purchaser  without anything more on his part. A Constitution Bench of  this  court  in Sri  Ram  Ram  Narain Medhiv. State of Bombay [1959 Supp 1 SCR 489, 518-19 : AIR 1959 SC 459 : 1959 SCJ 679] held that: “The  title  of  the  landlord  to  the  land  passes immediately to the tenant on the tillers' day and there is a completed purchase or sale thereof as between the landlord and the tenant. The title of the  land  which  was  vested  originally  in  the landlord passes to the tenant on the tillers' day and this title is defeasible only in the event of the  tenant  failing  to  appear  or  making  a statement that he is not willing to purchase the land or commit default in payment of the price thereto as determined by the Tribunal.” Therefore,  it  is  unquestionably established that on the tillers' day, the landlord's interest in the land gets extinguished and simultaneously by a statutory  sale  without  anything  more  by  the parties, the extinguished title of the landlord is kindled  or  created  in  the  tenant.  That  very moment  landlord-tenant  relationship  as understood  in  common  law  or  Transfer  of Property Act comes to an end. The link and chain is  broken.  The  absent  non-cultivating  landlord ceases to have that  ownership  element of  the land and the cultivating tenant, the tiller of the soil  becomes  the  owner  thereof.  This  is unquestionable.  The  landlord  from the  date  of statutory  sale  is  only  entitled  to  receive  the purchase  price  as  determined  by  the  Tribunal under Section 32-G. In other words, the landlord ceases to be landlord and the tenant becomes the  owner  of  the  land  and  comes  in  direct contact  with  the  State.  Without  any  act  of transfer  inter  vivos  the  title  of  the  landlord  is extinguished  and  is  created  simultaneously  in the  tenant  making  the  tenant  the  deemed purchaser. It is an admitted position that on April 1,  1957  Tarachand  was  the  landlord  and Janardhan  was  the  tenant.  Tarachand  landlord was under no disability as envisged by Section 32-F.  Therefore  on  April  1,  1957  Janardhan became deemed  purchaser  and  Mr  Lalit  could not controvert this position.”

                                                                                                                     Page 21 of 26

16. The position of law and decision cited cannot be

applied in  abstract.  Therefore, the fact situation  is to  be

noticed.  Hence having taken note of  the above contention

what is noticed at the outset is that the predecessor of the

appellants, namely, the defendant No.5 did not choose to file

the written statement in the suit.   In that circumstance the

contention to the effect that the suit schedule property or a

portion thereof  was an agricultural  property was never the

contention raised in the suit or as to whether the issue in the

suit should be referred to the Authority under the MTAL Act.

In  that  view no  issue  in  that regard arose before the  trial

court to consider as to whether the Civil Court had the

jurisdiction to entertain the suit.  That apart the undisputed

fact is that the legal representatives of defendant No.5 had

assailed the judgment of the court below in CRA

No.114/2012 which was considered along with CRA

No.112/2012 and claiming to be aggrieved by the dismissal of

the CRA No.114/2012 had preferred SLP(C) No.31644/2015

before this Court.   This Court through the order dated

23.11.2015 had dismissed the Special Leave Petition.                                                                                                                       Page 22 of 26

Despite  failing in the very proceeding relating to which the

execution petition has been initiated the said legal

representatives of defendant No.5 filed the application in

execution proceedings claiming to be agricultural tenants and

defeat the execution by terming the decree as a nullity.  It is

in the said proceedings the executing court having taken into

consideration all  aspects,  dismissed  the  application by  the

order  dated 15.10.2018.  The executing  court thus having

taken into consideration the order dated 20.07.2015 passed

by the High Court in CRA Nos.112, 113 and 114 of 2012 has

dismissed the application.   Further the right as claimed by

the said legal representatives based on the entry contained in

7/12 extract has been rejected.  We find no error committed

by the executing court for the following reasons.   

17. In our view even assuming for a moment that the name

of the  predecessor  was indicated in the  7/12  extract, the

basis of such entry is not demonstrated to be made after the

procedure being followed.   Though the learned senior

advocate has relied on the reference contained in the lease

deed dated 22.05.1928 that the hut of the agricultural tenant

                                                                                                                     Page 23 of 26

is situate in the leased land, there is no reference made to the

name of such tenant so as to indicate that the reference is to

their predecessor i.e. defendant No.5 nor can the co­existence

of the agricultural operations being carried out in the land

which was leased for storage of goods be assumed without

definite material or demarcation indicated from records.  The

reference is only to the existence of a hut.  That apart even if

the same is taken as a reference to the defendant No.5 in the

year 1928 the tenancy being continued and being operational

on the tiller’s day i.e. 01.04.1957 is to be established to claim

right under MTAL Act.   Further while the MTAL Act creates

right in favour of the agricultural tenant as on the appointed

day the further procedure as contemplated is also required to

be followed under Section 32G of the said Act.  In the instant

case apart from the fact that no such contention was urged in

the suit by filing a written statement, no document to

indicate that the  procedure  contemplated under the  MTAL

Act has been followed is available so as to conclude that the

defendant No.5 had become the landlord of the property by

operation  of law so  as to  bar the jurisdiction  of the  Civil

Court.                                                                                                                         Page 24 of 26

18. In that view, the decision referred to supra by learned

senior  advocate  would not  be  of  assistance in the  present

case since the said decision only indicates the legal position

and was applicable in the said case since in that case it was

an admitted position that as on 01.04.1957 Tara Chand was

the  landlord and Janardan was the  tenant.  On the  other

hand, in the present facts as already noticed no such

contention was taken at  the first instance nor  has  it  been

conclusively established that the defendant No.5 was an

agricultural  tenant more so  in the circumstance where the

suit schedule property did not continue to exist as an

agricultural property but was within Ahmednagar Municipal

Limits which was a Town Planning Scheme as on the date of

the suit.  Though we are not oblivious to the fact that certain

agricultural  properties  would subsequently get included in

the Town Planning Scheme, in the instant facts if the claim of

the defendant No.5 is to be taken note, not only the reliance

on 7/12 extract but a subsequent inclusion of the name in

the Municipal records based on any right that was crystalized

in favour of defendant No. 5 based on the MTAL Act was also

necessary to be established.  In the absence of the same the                                                                                                                       Page 25 of 26

contention put forth by the learned senior advocate cannot be

accepted.    

19. In  the  above  circumstance,  when the  contentions as

urged by the learned senior advocate for defendants No.1 and

2 as also the defendant No.5 are unsustainable and in that

background when we have noticed that all three Courts have

concurrently appreciated the material available on record and

have recorded a finding of fact to order eviction of the

defendants,  we see  no reason to interfere either with the

judgment dated 20.07.2015 passed in CRA No.112/2012 or

the judgment dated 15.10.2018 in CRA No.157/2018.  

20. Both the appeals accordingly stand dismissed with no

order as to costs.   Pending applications if any are also

disposed of.

….……………………….J.                                           (R. BANUMATHI)

       ….……………………….J.                                           (A.S. BOPANNA)

….……………………….J.                                               (HRISHIKESH ROY)

New Delhi, November 14, 2019

                                                                                                                     Page 26 of 26