Case Note & Summary
This first appeal arose from a suit for mandatory injunction wherein the City Civil Court had dismissed the suit but directed the Court Receiver to take back possession of a flat from defendant no. 10 (appellant) and hand it over to defendants nos. 1 to 9. The appellant, a blind person, claimed to be a protected tenant in possession and alleged that the plaintiff and other defendants colluded to dispossess him by obtaining a court order and that he had revoked a surrender deed due to non-payment of consideration. The Bombay High Court examined whether the appellant had indeed surrendered the tenancy and possession. It found that the appellant, despite being a law graduate and bank officer, had voluntarily executed a Declaration-cum-Surrender deed on 30 May 1989, unconditionally relinquishing all rights in the flat. His plea that the landlords had agreed to pay Rs.1,00,000 and failed, was unsupported by that document; the burden to prove such consideration lay heavily on him and was not discharged. Crucially, after executing the surrender, the appellant took concrete steps reflecting a change of residence: he got his young son admitted to a school in Ghatkopar, transferred his gas connection and ration card there, and admitted the same in a letter to the gas company. The distance between Ballard Pier and Ghatkopar (over 20 km) rendered it inconceivable that the family continued to reside at the suit premises. The Court held that the conduct of the parties and the documentary evidence clearly established that actual possession had been surrendered. The trial court had correctly appreciated this evidence and its direction to the Court Receiver to hand over possession to defendants nos. 1–9 was justified. Finding no perversity or error, the High Court dismissed the appeal, upholding the order under challenge. The decision reinforces the principle that a written surrender deed, unchallenged and coupled with subsequent conduct consistent only with vacating the premises, constitutes valid surrender and a subsequent claim of revocation based on an unproved oral understanding cannot succeed.
Headnote
A) Tenancy Law - Surrender of Tenancy - Declaration-cum-Surrender deed executed by tenant voluntarily - Transfer of Property Act, 1882, Section 111(e) - The defendant No.10 executed a surrender deed dated 30th May 1989 admitting suitable accommodation elsewhere and surrendering all rights in the flat to landlords - Held that defendant cannot plead contrary to the written document; the surrender was valid and binding (Paras 11-12). B) Evidence - Burden of Proof - Consideration for Surrender - Evidence Act, 1872, Sections 101-104 - Defendant No.10 claimed landlords agreed to pay Rs.1,00,000 for surrender but failed to pay, hence revoked the surrender - Held that the deed itself did not mention consideration, so heavy burden lay on defendant to prove the agreement and non-payment; he failed to discharge that burden (Paras 13-14). C) Evidence - Conduct of Parties - Admission of Change of Residence - Evidence Act, 1872, Section 8 - After executing surrender deed, defendant got his son admitted to school in Ghatkopar, transferred gas connection and ration card to that address, and himself wrote a letter for address change - Held that these acts constituted conduct proving actual surrender of possession and shifting of residence; the distance between Ballard Pier and Ghatkopar made it impossible for the family to reside at Ballard Pier while child studied in Ghatkopar (Paras 15-16). D) Civil Procedure - Court Receiver - Restoration of Possession - Code of Civil Procedure, 1908, Order 40 Rule 1 - The Court Receiver had sealed the premises and later defendant No.10 was put back in possession as agent of receiver - Trial court after dismissal of suit directed receiver to take back possession from defendant No.10 and hand over to defendants 1-9 - Held that trial court’s order was proper given that defendant No.10 had no subsisting right and possession was rightly to be delivered to the landlords (Paras 6-7, 17). E) Appeal - Interference with Trial Court’s Findings - Appreciation of Evidence - Code of Civil Procedure, 1908, Section 96 - Trial court’s findings that defendant No.10 had voluntarily surrendered possession and shifted residence were based on proper appreciation of evidence - Held that no reason to interfere in appeal as findings were not perverse (Paras 15-17).
Issue of Consideration
Whether defendant No.10 had surrendered the suit flat and its possession, and whether the trial court’s order directing removal of defendant No.10 from possession and handing over to defendants 1-9 was correct
Final Decision
The appeal is dismissed. The trial court’s order directing the court receiver to take possession of the suit flat from defendant No.10 and hand it over to defendants 1-9 is upheld.
Law Points
- Party cannot plead something not supported by document as it is contrary to the document
- Heavy burden lies on party to prove consideration agreed when not mentioned in surrender deed
- Conduct of parties like shifting residence
- transferring gas connection
- ration card
- and admitting child to school at new location indicate actual surrender of possession
- Revocation of surrender deed on ground of non-payment of consideration not accepted when possession already handed over
