Case Note & Summary
The case involves a second appeal by the original plaintiff, Vithal Saidu Lokhande, against the judgment of the appellate court which set aside the trial court's decree for arrears of rent and possession. The plaintiff had filed Regular Civil Suit No. 370 of 1977 seeking arrears of rent and possession of a portion of a house from the defendant, Rama Mahadev Gund (since deceased, represented by legal heirs). The trial court decreed the suit, directing the defendant to hand over vacant possession of the portion described in column 'A' of the operative order and dismissed the defendant's counterclaim for reconveyance. The defendant appealed, and the appellate court allowed the appeal, setting aside the trial court's decree and dismissing the suit and counterclaim. The plaintiff then filed this second appeal. The core legal issue was whether the defendant's possession under an agreement of sale (Exhibit 120) could be considered as that of a tenant, entitling the plaintiff to arrears of rent and possession under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The plaintiff argued that the defendant was a tenant, while the defendant contended that the agreement of sale created a license to occupy. The court, after hearing arguments, held that an agreement of sale does not create a landlord-tenant relationship; the defendant's possession was permissive under the agreement, not as a tenant. The court also rejected the defendant's claim of adverse possession, as the possession was permissive. Consequently, the court allowed the second appeal, set aside the appellate court's judgment, and restored the trial court's decree for possession and arrears of rent, but modified the decree to the extent that the plaintiff is entitled to possession of the suit property as described in the plaint.
Headnote
A) Rent Control - Landlord-Tenant Relationship - Agreement of Sale - The issue was whether an agreement of sale creates a landlord-tenant relationship. The court held that an agreement of sale does not create a tenancy; the defendant's possession is permissive and not as a tenant under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. (Paras 2-5) B) Transfer of Property Act - Part Performance - Section 53A - The court considered the applicability of Section 53A of the Transfer of Property Act, 1882, and held that the defendant cannot claim protection under this section as the agreement of sale did not confer any right to remain in possession beyond the terms of the agreement. (Paras 6-8) C) Limitation - Adverse Possession - The defendant's claim of adverse possession was rejected as the possession was permissive under the agreement of sale, and the defendant failed to prove hostile possession for the statutory period. (Paras 9-10)
Issue of Consideration
Whether the defendant's possession under an agreement of sale can be considered as that of a tenant, and whether the plaintiff is entitled to possession and arrears of rent.
Final Decision
The second appeal is allowed. The judgment and decree passed by the appellate court are set aside. The decree passed by the trial court is restored. The plaintiff is entitled to possession of the suit property as described in the plaint and arrears of rent as decreed by the trial court.
Law Points
- Agreement of sale does not create landlord-tenant relationship
- Permissive possession under agreement of sale
- Section 12 of Bombay Rents
- Hotel and Lodging House Rates Control Act
- 1947
- Section 53A of Transfer of Property Act
- 1882
- Adverse possession not established
