Sadashiv Hari Abhyankar vs Sanjeev Manohar Bhagwat and Others

Sharad Manohar, J.—A gory State of affairs this petition reflects, revealing the scandalizing manner in which persons claiming to be tenants

without a title of justification for the same can bring the decree-holder-landlord to his wit''s end by instituting innumerable proceedings, most of

them illegitimate.

The suit of the landlady was of the year 1965. She got the decree in her favour in 1975. Even before and after that decree, on several occasions,

this litigation had reached the precincts of this Court; every-time this Court had negatived the plea or pleas of persons claiming to be in possession

as tenants, and still the decree-holder is unable to reap the fruits of the decree in the litigation which started as early as in the year 1965.

It is necessary to state the facts chronologically. The suit premises are two Flats Nos. 7 and 8 in a building originally belonging to one Radhabai

Hari Abhyankar. Both these flats were let out to the husband of one Smt. Gajarabai Damodar Mhaisalkar. It was a common lease for both the

flats.

In 1965 R.A.E. Suit No. 7395 of 1965 was filed by said Radhabai for recovery of the possession of the suit premises on three grounds :

(a) Bona fide requirements of herself and of her son Sadashiv Hari Abhyankar;

(b) unlawful sub-letting of the suit premises by Smt. Gajrabai who became the tenant of the suit premises after the death of her husband Damodar;

(c) Unlawful change of user.

During pendency of the suit Gajrabai, the defendant-tenant, died on 3rd December, 1965. Her heirs were brought on record. Her daughter, Smt.

Suman Bhagwat filed her Written Statement. Whether others filed Written Statement or not is of no relevance for the purpose of this judgement;

but the point is that in the written Statement, she did not rest content by taking defences which were available for Gajrajabai, her predecessor-in-

title. In her Written Statement, she took a plea on her own behalf by way of a defence to the plaintiff''s suit viz. that she was a sub-tenant in respect

of the suit premises. It would defy, understanding as to how a person joined as an heir and legal representative of the deceased defendant in the

suit could defend the suit by a defence personal to himself or herself. Defences available to the heirs and legal representatives are only those which

were available to the deceased defendant. Whatever that may be, the fact remains that such a defence of sub-tenancy of Suman Bhagwat, the

daughter of deceased Gajarabai, was taken by Suman Bhagwat when she was joined in the suit as heir and legal representative of deceased

Gajarabai.

The suit was dismissed on 28th August, 1971 and the Appeal filed by the plaintiff against the same met with the same fate on 18th January, 1972.

Special Civil Application No. 701 of 1972 was, therefore, filed by Radhabai, the original plaintiff against the said decree of dismissal. The said

Special Civil Application was decided by a learned Single Judge of this Court (Vaidya, J.) on 5th December, 1975. The view taken by this Court

in that petition was that Suman Bhagwat was not a tenant in respect of the suit premises in any sense of the word, probably because the definition

of the word ''tenant'' in the Rent Act, as it then stood did not cover a daughter who was not residing with the tenant at the time of her death as a

member of the family. Whatever that may be, fact remains that this Court took the view that the bona fides of the landlord cannot be questioned by

a person who cannot claim to be a tenant of the landlord within the meaning of the Rent Act as it then stood. The Rule in the petition was,

therefore, made absolute and decree for possession of the suit premises was passed by this Court against heirs and legal representatives of

deceased Gajarabai, including the said Suman Bhagwat.

Against the said judgment of this Court, SLP (Civil) No. 790 of 1976 was filed by Suman Bhagwat to the Supreme Court; but the said SLP was

dismissed by the Supreme Court on 29th October, 1976. Thus, it came to pass that a final decree for possession against the heirs and legal

representatives of deceased Gajarabai and that decree has now become final at least from 29th October, 1976.

Now, comes the second round of litigation. The plea which should not have been taken by Suman Bhagwat in the suit filed against her mother

Gajarabai, in her capacity as the heir and legal representative of Gajarabai but which she took and which plea was negative by the Court was once

again raised by her by filing a Reg. Decl. Suit No. 30 of 1977. In that suit her contention was that she was a lawful sub-tenant of the suit premises

which were the subject-matter of the earlier suit filed against her mother and in the alternative that she was a tenant, and that the decree passed

against her mother and against herself as the heir and legal representative of her mother was not binding upon her. She also asked for injunction

against the execution of the decree.

The said suit was dismissed by the Small Causes Court on 5th December, 1978. As could be readily expected, she filed an appeal against the

decree of dismissal. In the meantime, the original landlady, Radhabai, died on 24th July, 1979. There is no dispute that her heir, the present

petitioner, has been brought on record in the appeal of Suman Bhagwat as also in the relevant execution proceedings.

The Appeal filed by Suman Bhagwat was numbered as Appeal No. 128 of 1979. It was dismissed by the Appeal Bench of the Small Causes

Court on 20th August, 1980, exactly 8 years before this date. Writ Petition No. 2767 of 1980 was filed by Suman Bhagwat against the said

decree of dismissal; but even the said writ petition was dismissed by this Court (Jahagirdar, J.) on 3rd March, 1982. However, time was granted

to Suman Bhagwat till 17th April, 1982, probably with a view to enable her to file a proper suit to establish her claim of tenancy in respect of the

suit premises u/s 5(11)(c) as it stood after amendment of Rent Act in 1978, by effectively impleading all the necessary parties in that suit. But it is

an admitted fact that no such suit was filed by Suman Bhagwat or any of the heirs till this date and a period exceeding 12 years has already passed

from the date when the eviction decree was passed by this Court on 5th September, 1975.

Against the said order dismissing the writ petition a SLP has been filed by Suman Bhagwat. I will mention the nature of the order passed by the

Supreme Court in that SLP presently.

After the judgment of Jahagirdar, J., in Writ Petition No. 2767 of 1980, Sadashiv Hari Abhyankar, who was brought on record as the heir and

legal representative of Radhabai, took out a Warrant of Possession against the heirs of deceased Radhabai, including Suman Bhagwat. The

application in that behalf was made on 9th August, 1982; but now, when the Bailiff went to execute the decree, the sons of Suman Bhagwat came

forth to obstruct the execution of the decree, contending that they were in possession of the suit premises. The Bailiff''s Report in that behalf is on

record. It states as follows :-

I went to execute the writ at the suit premises i.e. Flat Nos. 7 and 8 on 1st floor, Balchandra Niwas, Plot No. 2, Matunga Road, Bombay -19 on

9-8-82 at 1/15 p.m. The Deft No. 4 along with her other family members were present and she refused to give vacant possession of the suit

premises, so I started taking inventory of the articles lying therein, while the inventory was in progress, at about 2/50 p.m. (1) Shri Sanjeev

Manohar Bhagwat came to the suit premises and obstructed the execution stating that he and his father (2) Shri Manohar Ganesh Bhagwat his wife

(3) Mrs. Vasanti Sanjeev Bhagwat, and his brothers (4) Milind Manohar Bhagwat, (5) Shri Dhananjaya Manohar Bhagwat are in occupation of

the suit premises as per the warrant and she left the suit premises. I was accompanied by plaintiff''s son Shri Sadashiv Hari Abhyankar.

The correctness of this report is not called in question. It is clear that so far as Suman Bhagwat is concerned, the decree stands executed against

her. The question is as to what is the locus of the other persons, viz., Sanjeev Manohar Bhagwat, his wife Mrs. Vasanti Bhagwat and his brothers

Milind Manohar Bhagwat and Dhananjaya Manohar Bhagwat to obstruct the execution of the decree. As will be presently pointed out, the

obstruction is nothing but the grossest abuse of the processes of the Court.

Since the obstruction was caused, the plaintiff-decree-holder had to go through the procedural rigmarole once again and had to take out

obstructionist Notice No. 150 of 1982 against these obstructionists who are the respondents before me. It appears that in those proceedings a

plea was raised by these respondents that they were protected licensees. As will be presently pointed out, the plea had no basis or justification

whatsoever in the eyes of law. The trial Court had negatived the plea and even the appeal Court has negatived the same in paragraphs 6 and 7 of

its judgement. I may mention here that even though this judgment is very much impugned before me, no arguments have been advanced before me

by Mr. Parikh against this part of the impugned judgment , viz., paragraphs 6 and 7 of the same. I may mention here that the plea of protected

licensee has been negatived by the courts below on facts only. The legal position does not seem to have been appreciated by both the courts

below which position makes the claim of the present respondents of being protected licensees even more bogus. The legal position, as settled by

the judgment of the Supreme Court, is that a person who did not have a right to remain in possession as on 1st February, 1973 could not contend

nor any person claiming through him could contend that he was a protected licensee and that the protection given by the Act which came into force

on 1st February, 1973 to the protected licensee or deemed tenant was not available to him. In fact, the law (Maharashtra Act No. 17 of 1973)

does not apply to such persons at all. All the same, this point appears to have been urged before the courts below and with such misleading pleas

possession is retained by these respondents, who are none but rank trespassers, for decades together.

The plea of the respondents was negatived by the trial Court; but not before 29th March, 1985 on which date the obstructionist Notice was

made absolute and the warrant of possession was directed to be executed against the respondents.

But thereafter Suman Bhagwat obtained an order of injunction from the Supreme Court in the SLP filed by her against the order of Jahagirdar, J.,

in Writ Petition No. 2767 of 1980. It was an ex parte order of injunction passed by the Supreme Court in Suman Bhagwat''s SLP No. 6845 of

1982.

Pending the appeal in the Supreme Court as also pending the ex parte injunction granted by the Supreme Court, an agreement was arrived at

between the original plaintiff-decree-holder, on the one hand, and N.V. Bhuta and his brothers, on the other hand. The Agreement is dated 26th

August, 1985 and by that Agreement, the suit house was to be sold by the origi 104nal plaintiff-decree-holder to said Bhuta and brothers. In fact,

subsequently, on 29th May, 1986, even a Deed of Assignment had been executed by the plaintiff decree holder in favour of the said Bhuta and

brothers. If the Deed of Assignment was of the usual type in which an owner of the property sells his property to the purchaser for a consideration

and washes his hands off the property, it would have been a matter of grave doubt as to whether the plaintiff -decree-holder would be entitled to

execute the decree for possession alleged to have been obtained by him for his bona fide personal requirements. But the point which is the most

crucial point for the purpose of this judgement, is that neither the Agreement nor the consequent Deed of Assignment is of the usual type. No

doubt, the house in which the suit premises are situate was agreed to be sold and was later on, in fact, sold by the present petitioner, the original

plaintiff decree holder to N.V. Bhuta and brothers, but in that agreement there was a reservation of the plaintiff''s right to recover possession of the

suit premises by execution of the decree and to retain the said possession with himself as the tenant of N.V. Bhuta and brothers. I may mention

here that this reservation is carried forth to this Deed of Assignment as well and it is worthwhile setting out the relevant portions of both the

agreement as well as the Deed of Assignment which have a bearing upon this aspect of the question.

There is no dispute that this Agreement as well as the Deed of Assignment form part of the record in the lower Court. The agreement is produced

Exhibit ""F"" annexed to the petition. In the said Agreement after setting out the various litigations pending between the vendor (the present petitioner

and his various tenants and after setting out the various stipulations of purchase, statements are made in relation to the suit premises, viz., Block

Nos. 7 and 8 as follows:-

The purchasers agree to purchase the said property with full knowledge of the said pending proceedings. The purchasers agree and declare that

notwithstanding the said proceedings which are pending as aforesaid, the purchasers shall permit Achyut Hari Abhyankar the owner of the Blocks

Nos. 1 and 2 and Sadashiv Hari Abhyankar the owner of the Block Nos. 7 and 8 to occupy the said blocks Nos. 1 and 2 and 7 and 8

respectively as the owners thereof till the date of completion of sale and on and after the completion of the sale and even after the said Achyut Hari

Abhyankar and Sadashiv Hari Abhyankar obtaining vacant possession of the said blocks on the disposal of the present proceedings, the

purchasers shall permit and treat the said Achyut Hari Abhyankar and the said Sadhashiv Hari Abhyankar as the tenants of the purchasers in

respect of the said Blocks Nos. 1 and 2 and 7 and 8 respectively. The Purchasers further agree that the said Achyut Hari Abhyankar and the said

Sadashir Hari Abhyankar shall be entitled to continue the proceedings in respect of the said Blocks Nos. 1 and 2 and 7 and 8 respectively at their

own costs and the Purchasers shall, if necessary, join in the said proceedings and or assist the said Achyut Hari Abhyankar and the said Sadashiv

Hari Abhyankar in the said proceedings. In the event of the purchasers joining in the said proceedings and /or assisting the said Achyut Hari

Abhyankar and the said Sadashiv Hari Abhyankar in the said proceedings the purchasers shall do so at the cost of the said Achyut Hari

Abhyankar and the said Sadashiv Hari Abhyankar respectively. The purchasers shall be entitled to continue the remaining proceedings if they so

desire at their own costs and in the event of the purchasers desiring to do so, they shall arrange to bring themselves on records in the said

proceedings. The vendors shall be responsible to bear and pay all costs, charges an expenses of the said proceedings till the date of this

Agreement.

If we turn to the Deed of Assignment, which is annexed at Ex. ""G"" to the petition, we find the following statements in the preamble clause in the

Deed of Assignment:---

AND WHEREAS by an Agreement for Sale dated the 26th day of August, 1985 made between the Assignors of the one part and the Assignees

of the other part, the Assignors agreed to sell and assign unto the Assignees all their respective right, title and interest in the said property to the

Assignees at or for the price of Rs. 9, 00,000/- (being the present market value of the property) and on the terms and conditions therein

contained;

It is thus clear that even though the original plaintiff-decree-holder (the present petitioner) had sold the entire house in question to the purchaser, the

possession of the suit premises was not to be handed over to the purchasers. The vendor had obtained a decree against the original tenant. He had

also obtained an order for removal of obstruction offered by persons claiming through the original tenant or, rather, by persons claiming as

licensees from the person claiming through their original tenant. By virtue of that decree and order, he was to get the possession of the suit premises

and was entitled to remain in possession of the same. That right to get possession of the suit premises and to remain in possession of the same is

not affected either by the Agreement to assign or by the Deed of Assignment. No doubt, by virtue of the Deed of Assignment, the original decree-

holder would cease to be the owner of the suit premises and by virtue of the assignment, his status, from the date of assignment, would be that of a

tenant of the assignee; but the point is that the possession would continue to be with him. Moreover, even his right to execute the decree for

possession is reserved by necessary implication if not expressly.

Question is whether provision of section 17 of the Rent Act read with section 13(1)(g) of the same are offended by virtue of such arrangement

and, what is more important, whether the decree has become inexecutable by virtue of such arrangement arrived at between the assignor and the

assignee.

As mentioned above, in SLP No. 6845 of 1982, an ex parte injunction was obtained by Suman Bhagwat against the present petitioner. The

Supreme Court was moved by the petitioner for vacating the injunction. In the proceedings that followed the Misc. Petition for injunction and in the

proceedings for vacating the injunction, the fact that the present petitioner, the original decree-holder, had entered into an Agreement to assign the

house in which the suit premises are situate and had, in fact, executed the Deed of Assignment in favour of Bhuta and brothers on 29th May, 1986

was brought on record in the Supreme Court. An averment to that effect in made in paragraph 4 of that petition and this factual position that the

Deed of Assignment was executed by the decree-holder in favour of Bhuta and brothers was brought to the notice of the Supreme Court by

Suman Bhagwat herself has been stated in said paragraph 4. This factual position is not controverted or denied by the respondents. But the point is

that in spite of the fat that the Supreme Court''s attention was invited to this position, viz., that the petitioner had ceased to be the owner of the suit

premises with effect from 29th May, 1986, still by its order dated 23rd September, 1986, the Supreme Court vacated its order of ex parte

injunction and dismissed Suman Bhagwat''s Civil Misc. Petition for injunction. All the factual averments as regards this aspect of the matter have

been fully made in paragraph 4 of the writ petition and none of them has been controverted by the respondents by any affidavit. It was after this

order of the Supreme Court that the Appeal filed by the present respondents, who are none other than bogus obstructionists and rank trespassers,

came up for hearing before the Bench of the Court of Small Causes. A plea was raised before the Bench that the respondents were protected

licensees. The Bench agreed with the trial Court''s view on this point and negatived the plea on facts. But now, a fresh plea was raised that the

Deed of Assignment dated 29th May, 1986 had the effect of making the decree obtained by the petitioner-decree-holder inexecutable. This

argument went him to the Bench. The Court held that the petitioners, as landlords, had no subsisting interest in the suit premises and that, on that

account, the decree had ceased to be executable at the hands of the original decree-holder. The decree for possession obtained by the petitioner

for getting back possession of his own premises by litigation sprawling over two decades was set at naught by the learned Judges by just a stroke

of the pen, holding that the decree has become inexecutable by virtue of the Deed of Assignment. The reservation made in the Deed of Assignment

read along with the Agreement of sale was brought to the notice of the learned Judges; but the learned judges do not seem to have found any

relevance about it in the matter of decision on the question whether the decree, as per the intendment of section 17 of the Rent Act, could be said

to have become executable.

As rightly argued by Mr. Advani, the learned Counsel appearing for the petitioner, the judgement of the Court below exposes many grave

errors.

In the first place, the learned Judges have failed to see as to whether the present respondents had a ghost of locus standi to file the Appeal or even

to oppose the execution of the decree. As rightly held by the learned Judges, their very plea that the were licensees was a sham and bogus plea.

Plea was that Suman Bhagwat who is held not to be having a ghost of right to the suit premises had inducted her own husband and her own sons

as licensees in the suit premises. A greater travesty of the law can hardly ever be imagined. With the help of these sham contentions, the execution

of the decree has been delayed from the year 1982 onwards in addition to the earlier delay and the contention is that the persons who could not

have any locus to oppose the execution, all of a sudden, got the locus when the plaintiff sold the house in which the suit premises are situate to third

parties; but without forgetting to retain with himself the right to execute the decree and to be in possession of the suit premises after recovery of the

possession.

It is seen above that this Court has held (vide the judgement of Vaidya, J., in Special Civil Application No. 701 of 1972) that a person who cannot

be said to be a tenant of the suit premises cannot have a locus standi to question the bona fides of the landlord to recover possession of the suit

premises. Against this judgement, an appeal was sought to be preferred to the Supreme Court. But not even leave to appeal was granted by

Supreme Court and the relevant SLP was dismissed by the Supreme Court by whom, thus, the position is implicitly accepted that a person who is

not a tenant cannot oppose the bona fides of the landlord. It is still worse case when a rank trespasser tries to oppose the decree already passed in

favour of the decree-holder-landlord. Whatever may be the rights of the tenants in such matters or, rather, of the persons who are recognised in

law as the tenants in such matters, a rank trespasser cannot obstruct the execution of the decree for possession passed against the tenant. The

appeal should have been dismissed on this ground itself. Justice demands that these proceedings which are manifestly mala fide proceedings are

nipped in the bud rather than allowed to flower and blossom. Elementary principles of procedural justice require that valuable rights of persons are

not defeated by any pleas raised by persons who had no locus to raise the pleas. Unfortunately, thus side of the justice of the case does not appear

to have been present in the judicial mind of the learned Judges when they allowed the appeal filed by persons who had no locus to obstruct the

execution of the decree.

In this connection, it is to be noted that the date on which the obstruction was caused, there was neither any Agreement of Assignment nor any

Deed of Assignment. The ground on which the execution was obstructed was manifestly a sham ground, because neither the obstructionists had a

right to set up the plea of protected licensees nor their plea of protected licensees, in fact, had any foundation in veracity. It should be said to be an

anomalous system of law if the system gives to rank trespassers and persons abusing the process of law rights and status of lawful occupants of

other people''s properties. The present petition is capable of being allowed on this short and narrow ground itself and I make it clear that even

though I am going to discuss and examine the submissions urged by Mr. Parikh, almost endlessly, in this Court by taking any amount of this

Court''s time. I propose to rest my judgement on this position even all by itself.

The point that went home to the lower Court was assiduously argued by Mr. Parikh for the respondents. Contention is that by virtue of the

provision of section 17 of the Bombay Rent Act, the decree obtained by the present petitioner after so much of travails and tribulations has

become inexecutable.

In this connection, the first point to be noted is the assumption made by the learned Judges about the applicability of section 17. Even a cursory

glance of section 17 would show that it has no application to any decree obtained by the landlord, except the decree for possession on the ground

of his bona fide requirement u/s 13(1)(g) of the Act. When such a decree is obtained by him, it is preceded by the pleading, I the suit, that he

requires the premises bona fide. He must have further satisfied the Court that greater hardship would be caused to him if the possession of the

premises in question was not restored to him. In those proceedings, the defendant controverts the landlord''s claim. He contends that the

requirement of the landlord is not at all bona fide and further, that greater hardship would be caused to him if a decree for possession was passed

against him than that would be caused to the landlord is no such decree for possession was passed. All these aspects of the matter must have been

taken into account by the Court by examining the evidence led by the parties and it is only thereafter that the Court either passes a decree u/s

13(1)(g) or refuses to pass the decree under that section.

Quite a formidable point was raised by Mr. Advani, the learned Counsel for the petitioner, that this is not a decree u/s 13(1)(g) at all. The suit was

dismissed by the trial Court either on the ground that he had not proved his bona fides or that the balance convenience was not in his favour or,

perhaps, on both the grounds. It is only at the stage of the Special Civil Application in the High Court held that the person who cannot claim to be

a tenant after the demise of the lawful tenant cannot question the bona fides of the landlord in a suit filed by the landlord under the Rent Act.

Mr. Advani submitted, not without force, that a decree passed by this Court in Special Civil Application No. 701 of 1972 did not have the

trappings of a decree u/s 13(1)(g) at all, because the landlord''s claim for possession could not be controverted by a person who was not a tenant,

either actual or statutory. This meant, according to the learned Counsel that the decree has been passed by this Court in favour of the landlord, but

on title and not against a person who claims rights under the Rent Act but who has no such right and who is, hence, a rank trespasser. That is the

reason why the decree is passed without going into the question of bona fide requirement. In a sense the decree is passed in favour of the landlord

against a person who claims through the tenant but who is not a tenant, not because the landlord has proved that he requires the premises bona

fide, but because it was not open to the person who was falsely posing himself to be the tenant to question the landlord''s right to get back

possession when he himself had not a title of interest in the suit premises. If the bona fide character of the landlord''s requirement and of his claim

for possession has not even been enquired into by the Court while passing the decree, the decree cannot be said to be one u/s 13(1)(g) of the Rent

Act and if the decree is not one u/s 13(1)(g), then the question of applicability of section 17 of the Rent Act does not arise, argues the learned

Counsel.

12 In my opinion, the argument is quite sound and it is possible to allow this petition even on that ground. I am inclined to accept the argument and

to allow the writ petition even on this ground.

13 But even assuming that the decree obtained by the present petitioner from this Court in Special Civil Application No. 701 of 1972 is presumed

to have been passed u/s 13(1)(g) of the Rent Act, still in my opinion, the plea that the decree has become inexecutable by virtue of anything

contained in section 17 of the Rent Act must be negatived, having regard to the peculiar facts of the present case.

For appreciating the legal position in this behalf, it is necessary top bear in mind not only the litera legis but also the sententio lagis of the Rent Act.

Section 12(1) of the Act lays down a general proposition for protection of the tenants by providing that no landlord shall be entitled to recover

possession of any premises so long as the tenant pays or is ready and willing to pay the amount of standard rent, etc., and observes and performs

the other conditions of tenancy so far as they are considered with the provisions of the Rent Act. Exceptions to this general rule are carved by the

remaining portion of section 12 and by all the clauses of section 13(1) of the Rent Act. u/s 12(2) and (3) of the Act, decree possession has to be

passed against the tenant ignoring the protection given to him by section 12(1) if he commits default in the payment given to him envisaged by

section 12(3) of the Act. The protection is taken away also if the case falls in any of the provisions of sections 13(1)(a) to 13(1)(l) of the Rent Act.

For instance, if the tenant has built or acquired vacant possession of or has been allotted a suitable residence, his protection from the demand of

return of the premises from the landlord is taken away. Similarly, if the landlord requires it bona fide for his own occupation or for the occupation

of members of his family, the protection is taken away. But just as a demand of the landlord has got to be bona fide in that he must be requiring the

premises for himself, for his own occupation, or for the occupation of the members of his family, he must use the premises for the same purpose or

for the same persons. There can be no doubt that while making this provision, the law has been mindful of certain moral and ethical aspects Law

recognizes that if the landlord himself is suffering because of the want or inadequacy of the premises, the protection given to the tenant must give

way to the landlord''s need. The privileges or the superior right of the landlord are partially recognized by this requirement.

But implicit in this moral aspect is the principle that the landlord will not be allowed to take the Court for a joy-ride by obtaining the possession

with a representation that he requires it himself bona fide and by giving the same to others later on. If the law allows him to do such thing, it will

mean that the law has allowed him to practise fraud upon law itself. The law gives him possession because he requires it bona fide for his own

purpose. The law will not be expected to allow him to sell or give it away with impunity to others after securing possession through the machinery

of the Court. If he does so, not only that he plays a fraud upon the law but also upon the Court. This is the thing which the law wants to guard

against and the entire rationale of section 17 is the incorporation of this principle. Section 17 requires the landlord to use the premises for his own

purpose if he gets them by execution if the decree u/s 13(1)(g).

14 Let me now examine the position as to what happens if the landlord who obtained a decree against the tenant for possession of the suit

premises u/s 13(1)(g) sells the subject-matter of the decree to a stranger even before the execution of the decree if he has not reserved the right to

retain the possession of the premises in respect of which a decree has been passed by the Court u/s 13(1)(g). He will not be normally allowed by

the assignee to execute the decree, get the possession in execution and retain the possession thereafter with himself. May be that in the eyes of law

the purchaser of the property which is the subject-matter of the suit does not automatically become the assignee of the decree for possession of

that property. I make it clear that I am not expressing any final view on this point. All that I say is that this view is possible, viz., that the assignee of

the property may not automatically become the assignee of the decree of which the property is the subject-matter. The assignor-original decree-

holder might continue to be the decree holder and as such it is the possible view that he will be entitled to execute the decree. A view is further

possible that since the Executing Court is required to take the decree as it stands, it can take the possession from the judgement-debtor and hand it

over to the original decree holder; but one cannot overlook the substantive law on this point. The substantive law would be that in such a case the

decree holder will pass the title of the subject-matter of the decreed in favour of a stranger, will hold the property, after the execution of the

decree, in trust for the stranger-purchaser and he will not be entitled to retain possession of it for himself unless there was anything contrary

mentioned in the sale-deed. He may be the legal owner of the decree and of the property which the subject-matter of the decree; but the equitable

ownership will reside in the transferee and the decree holder transferor will be holding the property in trust for the transferee. This is the principle of

the substantive law on this point. This means that after executing the decree the possession will have to be parted with by the landlord in violation

of section 17 of the Act.

15 Now, it will be a very formidable objection to the execution of the decree if the Deed of Assignment is of such usual and conventional character

in which the assignor retains no right of possession with himself. The picture, however, changes totally if the vendor -decree-holder retains with

himself not only the right to execute the decree but also the right of possession of the suit premises. What the law expects him to do is to use the

premises for his own purposes after getting vacant possession of the premises from the tenant. If the decree holder himself gets into possession of

the suit premises which are the subject-matter of the decree and continues to be in possession of the suit premises as expected by law even after

the execution of the decree, the assignment made by him notwithstanding, the spirit and intendment of section 17 is fully satisfied . No-one will have

a right to contend, in such case, that he has practised fraud upon the statue or has practiced fraud upon the Court.

In this connection, Mr. Advani placed strong reliance upon a judgement of the Supreme Court reported in 1980(2) All India Rent Control

Journal P. 158, Mrs. Dhanlaxmi G. Shah v. Miss. Sushila Shiv Prasad Masurekir and others. The position obtaining in that case was a most

identical as the one obtaining here, except the fact that the Deed of Assignment which followed the Agreement of Sale in that case was not

produced by the decree -holder before the Court.

I make it clear once again that I am assuming that the decree in the instant case has been passed u/s 13(1)(g) of the Rent Act. In the Dhanlaxmi''s

case with which the Supreme Court was dealing the landlord had obtained the decree against the tenant. The report does not show as to whether

the decreed was u/s 13(1)(g) of the Rent Act. It appears that aspect of the matter has not been thought by the Supreme Court to be much of

relevance. After the decree was obtained by landlord, he assigned the property to a stranger. It was argued on behalf of the tenant judgement

debtor that once the property which was the subject-matter of the decreed was assigned by the landlord, he had no locus to execute the decree.

This contention was accepted by the High Court. The High Court held that since the right had now become vested in the purchaser, the decree

was not executable at the hands of the original landlord at all. In Appeal this view was confirmed by the Supreme Court.

But it was pointed out to the Supreme Court by the learned Counsel for the decree-holder-appellant that there existed an Agreement between the

assignor and the assignee of the property by virtue of which Agreement, the assignor was entitled to continue the execution proceedings and to

retain the possession of the suit premises with himself even after the execution of the decree. The Supreme Court noted this submission. The tenor

of the Supreme Court judgement shows that the Supreme Court was inclined even to accept this contention. It was brought to the notice of the

Supreme Court that the Deed of Assignment in which the right of possession was retained by the decree-holder was not produced before any

Court or before the Supreme Court at all. The very question whether the decree holder was entitled to retain the possession of the subject-matter

of the decree or not was something about which no information was placed before the Supreme Court by making it a part of the record. As

mentioned above, the general rule is that by the sale of the property, all the incidence of sale follows and the landlord becomes entitled to

possession property. In the absence of the Deed of Assignment reserving the right of possession of the assignor, the Supreme Court was required

to assume the right of possession was not retained by the assignor. The Appeal filed by the landlord decree-holder has been dismissed by the

Supreme Court on this point only and not on any other point.

Mr. Advani was very much right in making submissions about the implications of the judgement which is that is the landlord had produced before

the Supreme Court the Deed of Assignment showing that the right for possession was retained by the assignor, the view taken by the Supreme

Court would have been different.

In comparison with this judgement, the facts of the present case appear to be of a telf-tale character. In the instant case not only that the

landlord-decree-holder has retained the right for possession with himself, but has produced the Agreement and the Deed of Assignment which,

when read together, prove conclusively that nothing is done by the Deed of Assignment by virtue of which the right of the original landlord to get

into and to continue with the possession of the suit premises is taken away by the assignor.

But it was argued by Mr. Parikh that u/s 17 of the Rent Act, the possession can be taken by the decree-holder and can be retained by the

decree holder only in his capacity as a landlord, not in any other capacity. According to him, immediately upon the execution of the Deed of

Assignment, the status of the decree holder as that of a landlord had vanished. According to him, it was the assignee who become the landlord as

from 29th May, 1986 which was the date of the assignment. Under the Deed of Assignment read with the Agreement, the original landlord would

be entitled to get possession; but he would remain in possession only as the new landlord-tenant. This means, according to Mr. Parikh, that the

important condition of section 17, viz., that the learned trial Judge must get into and must continue in possession as a landlord, and not in nay other

capacity is not satisfied in this case. He, therefore, says that the decree is not executed.

In this connection, he lad particular emphasis upon the employment of the expression ''landlord'' in section 17(1) of the Act as also the expression

re-let.....to any person other than the original tenant"". According to Mr. Parikh, if the present petitioner tries to execute the decree now or tries to

execute the warrant of possession now, after he has assigned the subject matter of the decree to Mutha and brothers, it cannot be said that the

landlord had recovered the possession of the premises or that when the premises are re-let by the landlord to the present petitioner, they are not

re-let to any person other than the original tenant. The letting will be by the Assignee Mutha and Brothers, not to the original tenant but to the

erstwhile landlord and the possession would be deemed to have been received not by the landlord but by the erstwhile landlord who has entered

into an agreement of tenancy with the present landlord. Arguments is that such a position is not contemplated by section 17(1) of the Act at all and

if such position is the inevitable result, then the decree will be deemed to have become inexecutable.

Mr. Parikh''s preliminary analysis of section 17 may or may not be correct; question is whether the sequitor that he drives at is correct. The

section provides that if the landlord recovers possession and he re-lets to any person other than the original tenant, then the consequences

provided by the section would follow; but the section by itself does not provide or require that no person other than the landlord can execute the

decree for possession. Moreover, what the section contemplates as an embargo is against an action of re-letting by the landlord who has obtained

the decree so as to decree so as to defeat the very purpose of section 13(1)(g) and of the entire exercise by the Court in that behalf. The

intendment is that the person who occupies the position of the landlord should be entitled to get the possession of the premises if he himself or the

members of the family require it bona fide. When such person is going to remain in possession, himself and when he himself does not re-let the

premises after getting possession, no part of section 17(1) is offended at all. The litera legis of the section is not militated against. The sententio legis

of the section is equally observed and fulfilled. Neither in law nor equity, therefore is it necessary for this Court to hold that the decree in such a

case has become inexecutable.

Yet another caveat was put by Mr. Parikh by contending that while using the expression ''landlord'', section 17(1) has not added the prefix of

the word ''original'' whereas when reference is required to make to the tenant, that expression is qualified by the word ''original''. The legal

inference that he learned Advocated wants the Court to draw from this is that it is only the landlord who can execute a decree as a landlord and

no-one else. Submission is that the present petitioner ceased to be the landlord and hence, he cannot execute the decree.

I am afraid, this distinction urged by the learned Advocate, in fact, goes against him. The section does not at all require anywhere that it is only the

landlord who will execute the decree. In fact the section the does not deal with the entirety of the process of execution at all. It does not say as to

who alone will be entitled to execute the decree. All that it states is that when the landlord executes the decree, gets possession of the suit premises

and re-lets the same to any person other than the original tenant, the original tenant will be entitled to come forth before the Court and apply for

getting back possession of the premises. Now, in the instant case the original tenant is dead and one long ago. The expression ''original tenant'' is

obviously implied in contra-distinction from the expression ''tenant''. The word ''tenant'' is defined under the Act. The definition of the word

''original tenant'' has to be taken as per the general law and as per the general law in the instant case, the original tenants would be none other than

Smt. Gajarabai Damodar Mhaislkar or, perhaps, not even she but her husband through whom she claims to be the tenant. But in all probability, she

was the heir of her husband under the general law and was recognised by the landlady as tenant under the general law and hence, it can be safely

said that she was the original tenant in the sense that she was the ''contractual'' tenant. But by no stretch of imagination the present respondents can

be regarded as the original tenant. Nor can Suman Bhagwat claim herself to be the original tenant and it is only these busy bodies how have been

obstructing the execution of the decree. They have not a little of title to the suit property and still they have been dragging the decree holder from

pillar to post, thus delaying the execution for years and years together. The distinction made by Mr. Parikh between the two expressions ''tenant''

and ''original tenant'', thus, boomerang against his contention. In the context of the facts of the case the question of placing the original tenant in

occupation of the premises on the original terms and conditions does not arise at all.

In support of his contention that he decree has become inexecutable Mr. Parikh sought to place reliance upon the judgment of the Supreme

Court reported in Haji Sk. Subhan Vs. Madhorao, , in that case, the plaintiff filed a suit for possession of the suit field and other fields. The suit

was decreed on title which decree was confirmed in appeal; but before the delivery of judgement in the appeal, the M.P. Abolition of Proprietary

Rights (Estates, Mahals, Alinenated Lands) Act, 1950, came into force. This fact was not brought to the notice of the High Court. The Notification

lawfully issued u/s 4 of the Act provided that the provisions of the Act vesting the property in the Government would prevail over a contract, grant

or document or any other law further time being in force. It was thus clear that before the decree was passed, the right of the plaintiff in the

property had already vanished. He was divested of those rights and the title and the rights and title stood vested in the State Government. I was in

these circumstances that the Supreme Court held that the decree had become inexecutable.

What needs to be noted as a point of cardinal distinction the present case and in the case decided by the Supreme Court is that the decree was

rendered inexecutable by the newly enacted statute itself. The non obstante clause in that case extended not only to a contract or grant but also to

a decree. This is what is held by the Supreme Court when the Supreme Court held that the word ''document'' takes into its fold a decree passed

by the Competent Court. What this means is that a validly passed decree is rendered inexecutable not by the act of parties but by the provisions of

law. It is a statutory invalidation of the decree which is a far cry from what is done by parties by private agreements.

The general principle is that he executing Court must take the decree as it stands. The present decree says that the plaintiff is entitled to take

possession. There is no statutory embargo against the execution of that decree. Nothing in section 17 can be construed to mean that any such

embargo is injected into the statute. The law declared by the Supreme Court in the above mentioned Haji Sk. Subhan''s case is, therefore, clearly

distinguishable. In that case not only that he subject matter of the decree had passed on to the Government but that the provision was made to

supersede the decree passed by a Competent Court. Every Court, including an executing Court is bound to take judicial notice of this position. In

the present case, the decree-holder may have been bereft of the owner''s title to the subject matter of the decree; but he has still retained his right

to its possession coupled with the right to execute the decree. The totality of these reserved rights gives him power to execute the decree. Further,

there is nothing in section 17 which prevents him from selling the property which is the subject matter of the suit. Further, there is nothing which

statutorily supersedes the decree as was done in the case which the Supreme Court was dealing in Haji Sk. Subhan''s case.

The next judgement of the Supreme Court relied upon is in the case of Sri Vidya Sagar Vs. Smt. Sudesh Kumari and Others, . In that case a

preliminary pre-emption decree was obtained by the plaintiff-decree-holder. He also deposited the moneys for the consideration of sale deed and

asked for execution of the decree by execution of the requisite sale deed in his favour through the Court. The decree was obtained by him finally

on 27th April, 1970. On 1st July, 1970, the relevant Land Reforms act was brought into force in the Nainital District where the property was

situate. The execution proceedings were instituted by the decree holder thereafter and as an answer to the prayer for execution, the judgement

debtor contended that the decree had become inexecutable in view of the provisions of the said Land Reforms Act. This contention was upheld by

the High Court. In this connection, it is to be noted that even in this case there was a statutory vesting in the State Government of the property in

question and the non-obstante clause in that case had the over riding effect over every document, including a decree of the Court. The

consequences mentioned in the Act were deemed to have ensued from the date of the vesting. The result was that on the date when the execution

of the decree was sought in that case, the consequences, the notice of which had to be taken by the executing Court, had already ensued and those

consequences were certainly repugnant to the right of the decree holder to be in possession. It was in those peculiar circumstances that the

Supreme Court held that the decree had become inexecutable by virtue of the supervening statute. In the earlier case of Haji Sk. Subhan as also in

this case of Vidya Sagar, the decree had become inexecutable by virtue of a statutory provision, not by the act of parties. The statute has the over

riding effect of the other statute as had happened in those cases with which the Supreme Court was dealing. Acts of parties will not have such over

riding effect unless section such as section 17 of the Rent Act itself makes provision giving power of nullification of a decree to any particular act of

parties. There is nothing in section 17 of the Rent Act which has the effect of making the decree inexecutable at all in the context of the facts of the

present case. It is a possible contention that if the landlord who has obtained the decree on the ground of bona fide requirement sells the property

without reservation of his right of possession to a third person, he will not be allowed by the executing Court to execute the decree, because

execution in such a case would be an exercise in futility. Nothing of that kind happens in the present case. Both the letter and the spirit, of section

17 remain unharmed and unaffected if the decree is allowed to be executed.

Moreover, as rightly pointed out by Mr. Advani, it can be and must be held that even the Supreme Court has examined this position and has

arrived at the same conclusion. As stated above, the fact that the agreement of Assignment and Deed of Assignment executed by the present

petitioner (the original landlord-decree-holder) in favour of Mutha and brothers was brought to the notice of the Supreme Court by Suman

Bhagwat (through whom the present respondents claim) in support of her contention that the decree cannot be executed against her. Mr. Advani

argued, with evident force, that if the defect of the Deed of Assignment was to render the decree inexecutable against Suman Bhagwat, the

injunction by her ex parte would have been confirmed and continued by the Supreme Court and the very fact that instead of confirming it, it was

vacated by that Court must lead this Court to the conclusion that this plea of the decree having becoming inexecutable by virtue of this Deed of

Assignment has been rejected by the Supreme Court.

Mr. Advani is probably right in this submission. But the order of the Supreme Court is not exactly a speaking order, and hence it will not be

correct on my part to rely upon this position, all by itself, while allowing the petition.

After I refer to the above authorities. I have exhausted the examination of the arguments legitimately advanced by the learned Advocate for the

respondents, but quite a few authorities have been cited across the Bar irrespective of the question whether they at all apply. For instance,

judgement of the Supreme Court reported in H. Shiva Rao and Another Vs. Cecilia Pereira and Others, , was relied upon in support of the

contention that the decree has become inexecutable. Neither the facts which were the basis of the decision nor the principle with which the

judgement was concerned have got even the remotest application to the question arising in this case. The question involved in that case was as to

whether when protection given to the tenant by extending the area of operation if the Rent Act, after the passing of the decree, was available to him

during the execution proceedings or not. It was held that it was available to him. His was firstly because the protection was a statutory protection

specifically given by the supervening Rent Control legislation. As stated above, there is no comparison between a statutory protection and

incidence of acts of parties. A statute has always the over-riding effect and particularly so if is a welfare legislation.

Then certain authorities of others courts were sought to be relied upon. But they have not stated anything other than what the Supreme Court has

said. Similarly, M.M. Quasim Vs. Manohar Lal Sharma and others, , was relied upon. In that case what happened was that suit was filed by the

plaintiff for recovery of the possession of the suit premises on the ground of his bona fide requirement. The plaintiff was only a co-owner of the suit

premises. It appears that he got a decree for eviction. Pending the Appeal, he lost the interest in the suit premises as a result of a decree in the

partition suit between himself and the co-owner. The Supreme Court held that the Appellant Court can take notice of subsequent events and can

mould the relief accordingly. In my, opinion, this proposition is a deeply entrenched principle. In our corpus juris but it has no application to the

facts of the present case. The fact that the Appellant Court can mould the decree by taking into consideration the events subsequent to the decree

passed by the trial Court does not have any effect upon the right of the decree-holder in the matter of his right to execute the decree obtained by

him u/s 13(1)(g) of the Rent Act and one may be able it infer that the executing Court may have power to refuse execution of the decree if doing so

will further advance the real object of the Act.

There are other authorities relied upon. Beyond taking the Court''s time, they have not thrown any light upon the question to be decided in this case

at all. Hence, I do not propose to examine any of those authorities.

The Rule earlier issued is made absolute. But I cannot part with this judgement before observing that this writ petition is the result of the gravest

abuse of the process of the Court by the present respondents evidenced, inter alia, by the obstruction made by them to the execution of the

Warrant of Possession particularly by raising thoroughly false and fraudulent pleas in reply to the Obstructionist Notice No. 150 of 1982 in the trial

Court as also before the lower Appellate Court regarding their alleged status of protected licensees.

Hence, the respondents are directed to pay special costs of this Writ Petition in this Court which are quantified at Rs. 3,000/-. This will be in

addition to the costs to be paid by the respondents for the proceedings in both the lower courts.

By my separate order, I had directed appointment of Receiver of the suit premises and the respondents have been allowed to remain in possession

of the suit premises but only as Receiver''s agents and only the condition that they would give an undertaking to the Court to hand over possession

back to the Receiver on the happening of certain contingencies. The abovementioned payment of the amount of Rs. 3000/- as costs of this petition

shall be condition precedent for the respondents to continue to remain in possession of the suit premises as the Receiver''s agents. The amount shall

be either paid to the petitioner or shall be deposited in the Court with notice to the petitioner within two weeks from today, in default of which the

Receiver shall take actual possession of the suit premises from the respondents. The undertaking to be given by the respondents to the Receiver on

or before Monday, the 29th instant which undertaking shall include a further stipulation that the said amount of Rs. 3000/- shall be paid or

deposited by the Respondents as per the direction given above within the period mentioned above. If such undertaking is not given, the Receiver

shall take away the possession from the respondents forthwith.

Further orders as regards handing over of possession shall be passed, if necessary, in due course.

Liberty to the petitioner to apply to this Court for appropriate orders as regards actual possession from the Receiver.

One month''s time is given to the respondents to file an appropriate Appeal against this order and obtain stay from the Supreme Court in this

behalf. If no such stay is obtained on or before 26th September, 1988, the Receiver shall take back possession of the suit premises from the

respondents.

A simple copy of this judgement shall be made available to the respondents or to the learned Advocate on or before Friday, the 9th September,

1988.

The Receiver is directed to take note that an additional condition shall be incorporated in the undertaking to be given by the respondents as

mentioned in this final order dated 26th August, 1988.