Case Note & Summary
The case involves two suits: Regular Civil Suit No.657 of 1991 filed by the appellants (Anil Dhondu Shinde and Kishore Dhondu Shinde) against the original owner Govind Jagannath Samant (respondent No.1) and the lessees Laxman Vishnu Parulekar and his wife Chhaya Laxman Parulekar (respondent Nos.2 and 3) seeking a declaration that the owner had no right to obstruct entry of vehicles and for injunction. Regular Civil Suit No.814 of 1991 was filed by the owner against the lessees and the appellants for possession of the suit property on the ground that the lessees had sublet the property to the appellants without prior written consent, constituting breach of lease. The owner issued a notice dated 24-5-1991 under Section 106 of the Transfer of Property Act, 1882 terminating the lease. The trial court decreed the owner's suit for possession and dismissed the appellants' suit. The first appellate court confirmed the decree. The appellants filed a second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court held that the concurrent findings of fact regarding subletting were based on evidence and not perverse, and no substantial question of law arose. The second appeal was dismissed with no order as to costs.
Headnote
A) Property Law - Lease - Subletting - Section 106 Transfer of Property Act, 1882 - The lessees sublet the suit property to the appellants without obtaining prior written consent of the landlord, which constituted a breach of the lease terms. The landlord issued a notice under Section 106 of the Transfer of Property Act, 1882 terminating the lease. The courts below held that the subletting was established and the termination was valid. The High Court in second appeal found no perversity or substantial question of law, and dismissed the appeal. (Paras 1-10)
B) Civil Procedure - Second Appeal - Section 100 CPC - Concurrent findings of fact - The High Court held that the concurrent findings of the trial court and first appellate court regarding subletting and breach of lease were based on evidence and not perverse. No substantial question of law arose for consideration under Section 100 of the Code of Civil Procedure, 1908. (Paras 8-10)
Issue of Consideration
Whether the subletting of the suit property by the lessees to the appellants without the prior written consent of the landlord amounts to a breach of the terms of lease, justifying termination under Section 106 of the Transfer of Property Act, 1882, and whether the concurrent findings of the courts below are perverse or suffer from any substantial question of law.
Final Decision
The High Court dismissed the second appeal with no order as to costs, upholding the concurrent decrees for possession and dismissal of the appellants' suit.
Law Points
- Subletting without prior written consent of landlord constitutes breach of lease
- termination under Section 106 Transfer of Property Act
- 1882 is valid
- concurrent findings of fact not interfered with in second appeal
Case Details
2014 LawText (BOM) (08) 88
Second Appeal No.58 of 2004
Shri S.M. Gorwadkar, Advocate i/b Shri D.B. Mistry, Advocate for Appellants; Shri R.S. Apte, Senior Advocate i/b Shri A.R. Gole, Advocate for Respondent No.1
Shri Anil Dhondu Shinde and Shri Kishore Dhondu Shinde
Shri Govind Jagnnath Samant (since deceased through Mr. P.M. Nerurkar), Shri Laxman Vishnu Parulekar (since deceased through LRs), Smt. Chhaya Laxman Parulekar
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Nature of Litigation
Civil second appeal arising from a suit for possession and injunction concerning lease and subletting of property.
Remedy Sought
Appellants sought to set aside the concurrent decrees of possession in favor of the landlord and dismissal of their suit for injunction.
Filing Reason
The lessees sublet the suit property to the appellants without prior written consent of the landlord, leading to termination of lease and suit for possession.
Previous Decisions
Trial court decreed possession in favor of landlord and dismissed appellants' suit; first appellate court confirmed the decree.
Issues
Whether the subletting of the suit property by the lessees to the appellants without prior written consent of the landlord constitutes a breach of the terms of lease, justifying termination under Section 106 of the Transfer of Property Act, 1882.
Whether the concurrent findings of the courts below are perverse or suffer from any substantial question of law under Section 100 of the Code of Civil Procedure, 1908.
Submissions/Arguments
Appellants argued that the subletting was not proved and that the findings of the courts below were perverse.
Respondent No.1 (landlord) argued that the concurrent findings were based on evidence and no substantial question of law arose.
Ratio Decidendi
Subletting without prior written consent of the landlord constitutes a breach of the terms of lease, and termination under Section 106 of the Transfer of Property Act, 1882 is valid. Concurrent findings of fact by the trial court and first appellate court, if based on evidence and not perverse, cannot be interfered with in a second appeal under Section 100 of the Code of Civil Procedure, 1908.
Judgment Excerpts
Regular Civil Suit No.657 of 1991 was filed by two brothers, namely, Anil Dhondu Shinde and Kishore Dhondu Shinde against the original owner of the suit property, namely, Govind Jagannath Samant, joined as the defendant No.1.
Regular Civil suit No.814 of 1991 was filed by the owner of the suit property – Govind Jagannath Samant against Laxman Vishnu Parulekar and Chhaya Laxman Parulekar, joined as the defendant No.1 and the defendant No.2 respectively in the capacity as lessees of the suit property.
Procedural History
Regular Civil Suit No.657 of 1991 and Regular Civil Suit No.814 of 1991 were filed in the trial court. The trial court decreed the owner's suit for possession and dismissed the appellants' suit. The first appellate court confirmed the decree. The appellants filed Second Appeal No.58 of 2004 before the Bombay High Court, which was dismissed on 14 August 2014.
Acts & Sections
- Transfer of Property Act, 1882: 106
- Code of Civil Procedure, 1908: 100
