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REPORTABLE

        IN THE SUPREME COURT OF INDIA

        CIVIL APPELLATE JURISDICTION

          CIVIL APPEAL No.11868 OF 2016        (ARISING OUT OF SLP (C) No. 19259 of 2010)

Nandkishor Savalaram Malu (Dead) Through Lrs.                                                                                                                 …….Appellant(s)

VERSUS

Hanumanmal G. Biyani (D)  Thr. Lrs. & Ors.                                  ……Respondent(s)

          J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed against the final judgment

and  order  dated  23.03.2010  passed  by  the  High

Court  of  Judicature  at  Bombay  in  Civil  Revision

Application No.493/2008 allowing the said revision

application filed by the respondents herein.

3) Facts of the case lie in a narrow compass so

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are the issues involved in the appeal, a short one. It

would, however, be clear from the facts mentioned

infra.

4) The  appellants  are  the  plaintiffs  (landlords)

whereas  the  respondents  are  the  defendants

(tenant).

5) One  Mr.  Sawalaram  Shriram  Malu  and  Mr.

Nandkishore  Sawalaram  Malu  (father  and  son

respectively) jointly owned House No.47/48 situated

in Madhavnagar  at Sangli  (MH) (hereinafter  called

"the suit house").  They let out the suit house to a

firm called "M/s Biyani Textile" (hereinafter referred

to as "the Firm”) on a monthly rent of Rs.260/-.

6) On  09.03.1982,  the  landlords  served  a  quit

notice  on  the  tenant-Firm  and  determined  the

tenancy by demanding arrears of rent for the period

01.06.1980  to  28.02.1982  and  possession  of  the

suit house. Since the Firm did not pay the arrears

as demanded and nor vacated the suit house, the

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landlords were constrained to file a civil suit being

Regular Civil Suit No. 317 of 1982 claiming decree

for arrears of rent and eviction under the provisions

of the Bombay Rent Control Act. The suit was filed

against  one  employee  of  the  Firm-defendant  no.1

and partners of the Firm-defendant nos.2 to 9 in the

Court of IInd Civil Judge, Jr. Division, Sangli.  

7)  Defendant  no.1  filed  his  written  statement

whereas  defendant nos. 3, 4 to 9 filed their written

statement  jointly.  So  far  as  defendant  no.1  is

concerned, he set up his case contending that he

was working as employee of  the Firm.  He further

contended that in 1980, there was some discussion

between the plaintiffs and the partners of the Firm

about  vacating  of  the  suit  house  and  pursuant

thereto, the Firm vacated the suit house.  The suit

house  was then let  out  to  defendant  no.1  by the

plaintiffs.   It was then contended that plaintiff no.1

died and his legal representatives not having been

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brought on record, the suit could not be continued

at  the  instance  of  plaintiff  no.  2  for  want  of  any

privity of contract between defendant no.1 and the

plaintiff no.2.

8) So  far  as  the  partners  of  the  Firm,  i.e.,

defendant  nos.  3,  4  to  9,  are  concerned,  they

contended that they having vacated the suit house

in May 1980 and cleared  all their arrears of rent,

they are no more liable to do anything in the case

and,  therefore,  suit  against  them  is  liable  to  be

dismissed.

9) The  Trial  Court,  vide  judgment  dated

14.10.1991,  dismissed  the  suit  against  defendant

no.1 whereas it was decreed against  defendant nos.

2 to 9.  Firstly, it was held that the suit house was

let  out  to  the  Firm  through  their  partners

(defendant nos.2 & 3) and, therefore, the Firm was

the  tenant.   Secondly,  the  Firm  had  committed

defaults  in  payment  of  arrears  of  rent  and  also

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failed  to  re-pay  when  demanded  by  the  plaintiff.

Thirdly,  defendant  no.1  was  an  employee  of  the

Firm. Fourthly, defendant no. 1 was not the tenant

of  the  plaintiff  as  claimed  by  him  and  was  in

unauthorized  occupation  of  the  suit  house  as  a

trespasser.  Fifthly,  the  Firm  and  its  partners

(defendant  Nos.2  to  9)  having  failed  to  pay  the

arrears of rent, are liable to be evicted from the suit

house under the Bombay Rent Control Act. Sixthly,

the suit did not abate on the death of plaintiff no.1

because  plaintiff  no.2  is  already  on  record  and

sufficiently  represent  the  estate  of  the  deceased,

plaintiff no.1. Seventhly, liberty was granted to the

plaintiff to file separate suit against defendant no.1

under the general  law to claim possession of  suit

house because he was found to be in possession of

the suit house as trespasser and no eviction decree

can be passed against a trespasser under the Rent

laws.

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10) Felt aggrieved, Plaintiff  no.2 filed first  appeal

being  R.S.A.  No.  577  of  1991  before  the  District

Judge,  Sangli.  By  order  dated  03.02.2006,  the

District Judge allowed the appeal and decreed the

suit  against  all  the defendants  as claimed by the

plaintiffs. It was held that defendant no.1 being an

employee  of  the  Firm  was  bound  by  the  decree

passed against the Firm and its partners (defendant

Nos.2 to 9). It was further held that the defendants

failed  to  prove  that  the  Firm or/and  its  partners

surrendered the possession of the suit house to the

plaintiffs on 12.05.1980 and vacated the suit house.

It  was  further  held  that  defendant  no.1  failed  to

prove  that  he  became  plaintiff's  tenant  in  his

individual capacity by entering into a fresh contract

of tenancy on vacating the suit house by the original

tenant  as  claimed  by  them  and  lastly,  the

defendants are liable to pay the mesne profits at the

rate  of  Rs.260/-  per  month  from  01.05.1980  till

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delivery  of  possession  of  the  suit  house  to  the

plaintiff.  

11) Felt  aggrieved,  the  defendants  filed  revision

application being C.R.A. No. 493 of 2008 before the

High  Court.  While  the  revision  application  was

pending,  defendant  no.1 died and hence his legal

representatives were brought on record.  The High

Court, by impugned order, though did not disturb

the factual  finding of  the first  appellate Court yet

allowed  the  revision  and  while  setting  aside  the

order of the appellate Court, restored the order of

the Trial Court.  It is against this  order,  plaintiff

no. 2 (landlord) felt aggrieved and filed this appeal

by way of special leave before this Court. During the

pendency of this appeal, he also died and hence his

legal  representatives  were  brought  on  record  to

continue the lis.

12) Heard Mr. R.S. Hegde, learned counsel for the

appellants and Mr. Sukhbir Singh, learned counsel

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for the respondents.            

13) Learned  counsel  for  the  appellants  (plaintiff)

while  assailing  the  legality  and correctness of  the

impugned order argued three points.  

14) In  the  first  place,  he  argued  that  the  High

Court  was  not  right  in  allowing  the  revision.

Learned Counsel urged that the High Court failed to

even  take  note  of  the  settled  legal  principles

applicable  to  the  controversy  at  hand  and  thus

committed jurisdictional error.  

15) In  the  second place,  learned  counsel  argued

that without disturbing any of the factual findings

of  the  first  appellate  Court,  which were otherwise

binding  on  the  High  Court  in  its  revisionary

jurisdiction,  the  High  Court  committed

jurisdictional error in holding that once it is held in

rent  proceedings  that  defendant  no.1  was  a

trespasser  then  no  decree  under  the  Rent  laws

could  be  passed  against   a  trespasser  for  his

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eviction from the suit house and the remedy of the

plaintiffs  in  such  circumstances  is  to  file  regular

civil  suit  under  the  general  law  for  obtaining

possession.  

16) In the third place, learned counsel argued that

the  High  Court  failed  to  see  that  a  decree  for

eviction was rightly passed against the Firm and its

partners holding  them as tenant  and this  decree,

according to him, was binding on defendant no.1 on

all force for the simple reason that firstly, defendant

no.1  even  according  to  his  own  case  was  an

employee of the Firm and the Courts also held him

to  be  so.  Secondly,  defendant  no.1  failed  to

establish his independent contract of tenancy with

the  plaintiffs  though  claimed.  Thirdly,  the  Firm

through  their  partners  failed  to  prove  that  they

surrendered the vacant possession of the suit house

to the plaintiffs on 12.05.1980.

17) According to learned counsel, it was, therefore,

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a clear case where tenant having suffered a decree

for  eviction,  all  persons  claiming  through  such

tenant or/and those acting for and on behalf of the

tenant-Firm, had to be dispossessed on the strength

of the decree suffered by the tenant-firm.

18) On these submissions, learned Counsel for the

appellants prayed for reversal of the impugned order

and restoration  of  the  order  of  the  first  appellate

Court.

19) In reply, learned counsel for the respondents

supported the impugned order and contended for its

upholding.

20) Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are  inclined  to  accept  the  submissions  of  the

learned  counsel  for  the  appellants  as,  in  our

opinion, it has a force.

21) Indeed,  we  are  constrained  to  observe  that

there  was  absolutely  no  legal  basis  for  the  High

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Court to have reversed the well-reasoned order of

the first appellate Court which had rightly reversed

the order of  the Trial  Court by passing decree for

arrears of  rent,  eviction and  mesne profits against

all  the  defendants  jointly  and severally.  The High

Court, unfortunately, failed to apply the settled legal

principles  applicable  to  the  case  at  hand  as  are

enumerated herein  below in  the  light  of  following

factual findings of fact recorded by the two Courts

below.

22) Firstly,  the  Firm  was  held  to  be  the  tenant

whereas  defendant  no.1  was  held  to  be  Firm's

employee.  Secondly, the Firm failed to prove that

they surrendered their possession to the appellants

and cleared all arrears of rent and lastly, defendant

no.1 was held to be in possession of the suit house

as “trespasser” and not as “ appellants’ tenant”.

23) With these concurrent findings of fact, we are

of the considered opinion that neither the Firm nor

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their partners and nor defendant no.1 had any legal

right to remain in possession of the suit house.  The

reason  being  that  so  far  as  the  Firm  and  its

partners  were  concerned  (defendant  Nos.  2  to  9),

they being the tenant rightly suffered the decree for

payment of arrears of rent and  eviction under the

Rent  Act  and  so  far  as  defendant  no.1  was

concerned,  he  was  neither  an  owner  of  the  suit

house nor a tenant inducted by the appellants and

nor a licensee but was held to be an employee of the

Firm and a rank trespasser in the suit house.  

24) The legal effect of such eviction decree under

the  Rent  Act  was  that  the  possession  of  the

tenant-firm  and  persons  claiming  through  such

tenant became unauthorized. Since the tenant was

a Firm, persons connected with the internal affairs

of the Firm such as its partners and the employees

working in the Firm were also bound by the eviction

decree for the simple reason that all such persons

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were claiming through the tenant-Firm.

25) An employee of a tenant is never considered to

be in actual possession of tenanted premises much

less in possession in his legal right.  Indeed, he is

allowed to use the tenanted premises only with the

permission of his employer by virtue of his contract

of  employment  with  his  employer.  An  employee,

therefore, cannot claim any legal right of his own to

occupy or to remain in possession of the tenanted

premises  while  in  employment  of  his  employer  or

even thereafter qua landlord for want of any privity

of contract between him and the landlord in respect

of the tenanted premises.   

26) There was, therefore, no need for the appellant

to file a separate suit to claim possession of the suit

house against defendant no.1 under the general law

as he was well within his legal right to execute the

decree  for  eviction  from the  demised  premises  in

this  very  litigation  not  only  against  the  original

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tenant  but  also  against  all  the persons who were

claiming through such tenant. As mentioned above,

defendant no.1 was such person who was held to be

claiming through the tenant being its employee and

was,  therefore,  bound  by  the  decree  once  passed

against his employer-tenant.  

27) A tenancy is a creation of contract between the

two persons who are capable to enter into contract

called  lessor/landlord  and  the  lessee/tenant.  The

two persons can be either living person or juristic

persons such as Partnership Firm or a Company.

28) Once the tenancy is created either orally or in

writing with respect to a land or building then it is

always  subject  to  the  relevant  provisions  of  the

Transfer of Property Act, 1882 (hereinafter referred

to as “the TP Act”) and the State Rent Acts. Sections

105 to 111 of the TP Act provide certain safeguards,

create  some  statutory  rights,  obligations,  duties

whereas the State Rent Acts,  inter alia,  specify the

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grounds  to  enable  the  lessor  to  evict  the

lessee/tenant from the demised premises.

29) If the lessee/tenant is a living person, then in

such event, the tenant would also include his legal

representatives  in  the  event  of  his  death together

with his  dependents living with the tenant in the

tenanted premises. Likewise, if the lessee/tenant is

a juristic person, i.e.,  partnership Firm then such

tenant  would  represent  the  interest  of  all  the

partners of the Firm and the employees working in

the  Firm.  Such persons since claim through the

Firm, they have no right of their own in the tenancy

and in the demised property qua landlord.      

30) As  a  matter  of  fact,  in  our  view,  it  was  not

necessary  for  the  appellants  to  have  impleaded

defendant no.1 in the present rent proceedings.  The

reason  being  that  in  rent  proceedings  the

lessee/tenant is the only necessary or/and proper

party and none else. A person, who claims through

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lessee/tenant, is not a necessary party.  

31) The  aforementioned  factors  were  completely

overlooked  by  the  High  Court.  It  is  for  these

reasons,  the  impugned  order  is  not  legally

sustainable and, therefore, deserves to be set aside.

32) In the light of foregoing discussion, the appeal

succeeds  and  is  accordingly  allowed  with  cost

quantified at Rs.5000/- payable by the respondents

to  the  appellants.  The  impugned  order  is

accordingly set aside and, in consequence thereof,

the judgment/decree passed by the first  appellate

Court (District Judge, Sangli)  dated 03.02.2006 in

Civil Appeal No.577 of 1991 is hereby restored.  

33) The  respondents  are  granted  three  months’

time to comply with the judgment and decree of the

first appellate Court by depositing the entire money

part of the decree as awarded therein and further to

handover the vacant possession of the suit house to

the appellant.  The respondents  would also pay to

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the  appellants  three  months’  rent  by  way  of

damages in advance and the cost awarded by this

Court within one month and to submit the usual

undertaking to this Court, failing which the decree

dated  03.02.2006  be  executed  against  the

respondents forthwith on the expiry of one month.

                  ………...................................J. [A.K. SIKRI]

                             …...……..................................J.

 [ABHAY MANOHAR SAPRE] New Delhi; November 29, 2016     

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