Oral Judgment:

(1) Heard finally with the consent of the learned counsel appearing for the parties forthwith.

(2) The present appeal arises out of judgment and decree dated 20/11/2012 passed by the learned Adhoc District Judge-2 Amravati in R.C.A.No.154/2007, whereby the learned appellate Court has reversed the judgment and decree dated 21/07/2007 passed by the learned Civil Judge, Junior Division, Chandur Railway in R.C.S.No.33/2004 by which the learned trial Court had dismissed the suit filed by the respondent/original plaintiff to the extent of prayer for recovery of possession and has merely granted a decree for recovery of arrears of rent. The appellants are original defendants and respondent is the original plaintiff. The parties will hereinafter referred to as plaintiff and defendants.

(3) Vide order dated 20/01/2014 following substantial questions of law were framed in the present appeal :-

                   (1) Whether the first appellate Court, while reversing the judgment and decree of the trial Court, recorded findings which can be described as perverse or unsustainable in law ?

                   (2) Whether relief under Section 111(g)(2) of the Transfer of Property Act for forfeiting tenancy in favour of Mohammad Siddique was available to the landlord in this case against the appellants ?

                   (3) Whether any of the appellants before the Court claimed tenancy in the capacity of legal heirs of the original tenant Mohammad Siddique ?

                   (4) Whether first appellate Court rightly granted damages and also rightly ordered mesne profit payable by the appellants to the owner of the suit premises ?

(4) The plaintiff filed suit for possession and recovery of arrears of rent and damages against the defendants with respect to the suit property which comprises shop blocks situated at Old Motor Stand, Chandur Railway, District Amravati. The plaintiff filed the said suit stating that Late Mohd. Siddique Ali Mohd. Janwani was occupying the suit property as his tenant since the year 1960 on rent of Rs.72/-p.m. He stated that the tenant was paying rent regularly to him. It is the case of the plaintiff that when his servant had been to the tenant to deliver rent receipts for rent paid for period from 01/01/1993 to 31/03/1993 and 01/04/1993 to 31/08/1993, the tenant exerted pressure on the servant and compelled him to incorporate the words, “M/s. Rafique Kirana Stores” in the said receipts and thereafter, he signed the said receipts. It is the case of plaintiff that Mohd. Siddique was his tenant and that M/s. Rafique Kirana Stores was never his tenant. The plaintiff stated that the tenant Mohd.Siddique was sending rent by money order in the name of M/s. Rafique Kirana Stores, which he refused to accept since M/s. Rafique Kirana Stores was not the tenant. The defendants issued letter dated 30/07/1994 on the letter head of M/s. Rafique Kirana Stores to the plaintiff claiming that M/s.Rafique Kirana Stores was the tenant. The plaintiff issued legal notice dated 30/09/1994 stating that M/s. Rafique Kirana Stores was not his tenant and therefore, rent could not be accepted from M/s. Rafique Kirana Stores. The plaintiff demanded payment of rent from Mohd. Siddique. The defendants issued reply notice dated 25/10/1994 inter alia stating that the tenant of the suit property was always M/s.Rafique Kirana Stores and that Mohd. Siddique was never a tenant in his individual capacity. In this backdrop, the plaintiff filed aforesaid suit claiming a decree for possession on the ground that the tenant had surrendered the tenancy and had incurred forfeiture of the same as per Section 111 (f) and (g) respectively of the Transfer of Property Act, 1882.

(5) The defendants filed written statement opposing the contention that the tenancy was surrendered and or the defendant Mohd. Siddique had forfeited the tenancy. The defendants, however, contended that Late Mohd. Siddique was not a tenant in his personal capacity and that the tenant was M/s.Rafique Kirana Stores. They contended that the plaintiff had no cause of action against them in the capacity of legal heirs of Late Mohd. Siddique. It is the case of the defendants that M/s. Rafique Kirana Stores is a partnership firm which is in existence prior to the year 1992.

(6) It will be pertinent to mention here that the plaintiff has stated in paragraph 2 of the plaint that he is owner of the suit property and also landlord of the defendants. The statement in paragraph 2 of the plaint is expressly admitted by the defendants. The ownership of the plaintiff and his status as landlord is not denied by the defendants. In paragraph 3 of the plaint, the plaintiff has pleaded that somewhere around the year 1960 Mohd. Siddique had taken the suit shop on rent and he was a tenant of the plaintiff. The contents of paragraph 3 are also admitted in the written statement, however, a statement is made that M/s. Rafique Kirana Stores is a partnership firm which was in existence prior 30/12/1992. Further in the written statement the defendants have contended that the suit property was in occupation of M/s. Rafique Kirana Stores as tenant. It will be pertinent to mention that partnership deed of M/s. Rafique Kirana Stores is on record as Exh.69. Perusal of the partnership deed indicates that Late Mohd. Siddique and defendants No.2 and 3 are partners in the said firm. The partnership deed dated 01/04/1992 (Exh.69) contains recital that the aforesaid three partners were running the business under the name and styled as M/s.Rafique Kirana Stores as per earlier partnership deed dated 13/11/1985. The partnership deed shows that each partner had 1/3rd share in the firm. After demise of Mohd. Siddique and the defendants No.2 and 3 have executed fresh deed of partnership dated 08/07/2003 which is at Exh.92. It will also be appropriate to refer to a certificate issued by Central Bank of India stating that the partnership firm M/s. Rafique Kirana Stores was having an account with said Bank since the year 1985.

                   As to Substantial Question of Law No. 2 :-

                   2) Whether relief under Section 111(g)(2) of the Transfer of Property Act for forfeiting tenancy in favour of Mohammad Siddique was available to the landlord in this case against the appellants ?

(7) As stated above decree for possession is sought on two grounds, namely, by implied surrender as per Section 111(f) and forfeiture as per Section 111(g). The case of surrender is not accepted by both the learned Courts. The learned trial Court has held that the defendants had proved that M/s. Rafique Kirana Stores was the tenant of the suit property and that the plaintiff had failed to prove the case of forfeiture. As against this, learned first appellate Court recorded that Mohd. Siddique was in occupation of the suit property as a tenant and tenancy was not in favour of the M/s. Rafique Kirana Stores. The learned first appellate Court has referred to the assessment extract at Exh.95, according to which, M/s. Rafique Kirana Stores was standing in the name of Mohd.Siddique from the year 1980-81 to 1985-86 and has held that the defendants did not prove payment of rent during this period in the name of M/s. Rafique Kirana Stores and had accordingly failed to establish that the tenant was M/s. Rafique Kirana Stores and not Mohd. Siddique.

(8) The learned first appellate Court has referred two documents at Exh.70 and 72 to arrive at finding that the Mohd. Siddique had denied his status as tenant of plaintiff and claimed that M/s. Rafique Kirana Stores was the tenant and accordingly, the plaintiff was entitled to decree for possession with respect to suit property. The learned first appellate Court has however, not recorded a positive finding that the notice at Exh.70 and letter at Exh.72 resulted in forfeiture of lease as per Section 111(g).

(9) During the course of hearing of the present appeal, the learned counsel for the respondent/original plaintiff has filed an application for amendment of plaint in order to incorporate certain extracts from exhibited documents wherein Late Mohd. Siddique had stated that he was not a tenant of the plaintiff in his personal capacity. It is further stated that these statements by Mohd. Siddique resulted in repudiation of landlord-tenant relationship and therefore, the defendants were not entitled to protection of provisions of Maharashtra Rent Control Act, 1999 and accordingly plaintiff is entitled to a decree for possession in view of disclaimer tenancy by Late Mohd.Siddique, husband of the defendant No.1 and father of other defendants.

(10) The issue which falls for consideration in the appeal is as to whether ingredients of Section 111(g) of the Transfer of Property Act are attracted to establish a case of forfeiture of tenancy, in view of stand taken by the defendants and Late Mohd.Siddique that the tenancy was in favour of M/s. Rafique Kirana Stores and not in favour of Mohd. Siddique. Section 111(g) comprises three parts viz :-

                   (1) lessee breaks an express condition of lease which provides ground for the lessor to re-enter the leasehold property.

                   (2) the lessee renounces his character by setting up a title in a third person or by claiming title himself.

                   (3) the lessee is adjudicated as insolvent and the lease provides for lessor re-entering the leasehold property on such adjudication and

                   (4) the lessor or his transferee issues a written notice to the lessee, thereby showing intention to determine the lease.

(11) In the present case, Mohd. Siddique and thereafter, defendants contend that lease initially was granted to M/s. Rafique Kirana Stores and not Mohd.Siddique. M/s. Rafique Kirana Stores is a business concern, which was initially being run by Mohd.Siddique individually and thereafter in partnership with his sons viz defendants No.2 and 3. Perusal of partnership deed dated 01/04//1992 makes a reference to earlier partnership deed dated 13/11/1985. It is undisputed position on record that the lease commenced somewhere around the year 1960. The parties are ad idem on this. The defendant No.2 Rafique is the eldest son of Mohd. Siddique, who was born somewhere around the year 1960 to 1962. School Certificate on record indicates that he was born on 22/02/1962. (Exh. 81). It is also not in dispute that the suit property was being utilized for running a grocery store by the name M/s. Rafique Kirana Stores, therefore, it follows that initially Mohd.Siddique was running the business under the name and style M/s. Rafique Kirana Stores individually as its sole proprietor. The learned first appellate Court has also recorded findings by referring to documents on record that from the year 1981 to 1985 Mohd. Siddique alone was running the business (Exh.95). It is in this context that the stand taken by Mohd. Siddique and thereafter the defendants needs to be examined.

(12) It must be stated that in his letter dated 30/07/1994 (Exh.72) Mohd. Siddique never questioned the ownership of his landlord i.e. plaintiff. He did not set up a title with respect to tenanted premises in himself or in any third person. Likewise ownership of plaintiff is expressly admitted in the legal notice as well as in the written statement and further during the course of evidence.

(13) The learned counsel for the plaintiff harps on clause (2) of Section 111(g) and contends that by coming up with a plea that Mohd. Siddique was never a tenant, the defendants and prior to them Mohd.Siddique had renounced his character as a tenant, resulting in forfeiture of tenancy. It is also contended that although both the learned Courts have held that plaintiff has failed to establish a case of determination of tenancy on account of implied surrender, the express statement in letter issued by Mohd. Siddique, legal notice issued by him as also stand taken in the written statement and evidence, there is a clear admission of surrender of tenancy. It must be stated that in order to make out a case for determination of tenancy by forfeiture as per Section 111(g)(2), a landlord must establish that the tenant has renounced his character by setting up title in third person or claiming by title himself, such is admittedly not the case. Renouncement must be only by setting up title in 3rd person or by the lessee claiming title in himself. The defendants/lessees have never set up title over the suit property in favour of any person other than the plaintiff/landlord and as likewise not claimed title over the suit property in himself. Likewise, even Mohd. Siddique did not set up title himself, therefore, Section 111(g) is not attracted.

(14) It is well settled that a proprietorship concern is not a juristic person, it is only name under which a person conducts his business. When, in general parlance reference is made to a sole proprietorship concern, it implies that the reference is to its proprietor. It must also be stated that even a partnership firm is not juristic person. Partnership, as defined under Section 4 of the Partnership Act, 1932, is a contract between individuals to conduct business to earn profits. Partnership firm is a compendious name for all the partners in the firm. The contention of Mohd. Siddique and the defendants that M/s. Rafique Kirana Stores was the tenant since inception implies that the tenant was Mohd. Siddique.

(15) It must be stated that probably stand taken by Mohd. Siddique and thereafter the defendants that M/s. Rafique Kirana Stores was the tenant because Mohd. Siddique had subsequently inducted the defendants No.2 and 3 (his sons) as partners in M/s. Rafique Kirana Stores, which was initially being run by him as a sole proprietorship concern. It may well be that they apprehended that the plaintiff may treat the induction of sons as partners as an act of subletting, and in order to avoid the consequences of subletting, the said stand was adopted by Mohd. Siddique and thereafter the defendants.

(16) Therefore, statement of Mohd. Siddique and thereafter, the defendants that M/s. Rafique Kirana Stores was the tenant and that Mohd.Siddique was never a tenant in his individual capacity will not amount to forfeiture or even lead to interference that determination of tenancy by implied surrender.

(17) Learned counsel for the respondent/original plaintiff has tendered across the bar an application for amendment of plaint, in which reference is made to written statement filed by the defendants in response to paragraphs 2 and 3 of the plaint likewise reference is made to reply notice dated 25/10/1994 issued by Late Mohd. Siddique (Exh.61). By referring to statement of Late Mohd. Siddique was not tenant of the suit property in his personal capacity, it is sought to be contended that there is disclaimer of title resulting in repudiation of landlord tenant relationship and therefore, protection of Maharashtra Rent Control Act, 1999 is not available to the defendants.

(18) It needs to be stated that the plaintiff has already come with a case of determination of tenancy by implied surrender on the very ground that Mohd.Siddique and thereafter the defendants claimed that M/s. Rafique Kirana Stores was the tenant and Late Mohd.Siddique was never tenant in his individual capacity. The contentions with respect to surrender, which are sought to be raised in the plaint by way of amendment, are already raised in the original plaint and both the learned Courts have dealt with it. This Court has also recorded that plaintiff has failed to make out a case of implied surrender. It needs to be mentioned that case of implied surrender is not sought to be established on the basis of any fresh material. Apart from this, a contention is raised that defendants are not entitled to protection of provisions of Maharashtra Rent Control Act. Indeed in case of a tenant surrenders the tenancy voluntarily and also in case of a forfeiture of tenancy by the tenant, protection of Maharashtra Rent Control Act is not available. However, as held above the case of surrender a forfeiture is not made out by the plaintiff.

(19) Learned counsel for the respondent/plaintiff placed reliance on the judgment of this Court in the case of Ratanlal Manikchand Shah vs. Chanbasappa Sanganbasappa Chincholi and others reported in AIR 1978 Bombay 216, relevant paragraph 35 thereof reads as under :-

                   “35. A disclaimer, as the provisions of Section 111 of the T. P. Act clearly indicate, is a renunciation by a lessee of his title as a tenant. If such a lessee is a contractual tenant, then it is renunciation of his title as a contractual tenant. The effect of such a renunciation must of necessity be the cessation of the relationship of landlord and tenant between such a lessee and his lessor. Such a cessation of the relationship militates against the springing into action of a statutory tenancy in favour of such a lessee, because, in principle, the case of such a disclaimer is not at all distinguishable from that of a surrender adverted to above. The effect of such a disclaimer, in our opinion, is that it brings to an end the relationship of landlord and tenant; the cessation being by operation of law resulting from proprio motu (a voluntary act) of the tenant. We do not see any reason to imply in favour of such a tenant the sprouting of a statutory tenancy or the operation of the restrictive provisions of the Bombay Rent Act in his favour. Similarly, statutory tenancies can also be disclaimed so as to render inapplicable the provisions of the Bombay Rent Act. A tenant disclaims the title of his landlord who accepts such disclaimer and seeks eviction upon the basis thereof. The voluntary action of the tenant and its acceptance by the landlord results in a bilateral determination of the tenancy and takes the case out of the pale of Section 5(11) of the Bombay Rent Act. Statutory protection under the Act is to a tenant who claims to be a tenant and who is ready and willing to abide by the terms of the tenancy. A tenant who disclaims his tenancy does not fulfill the aforesaid qualifications. A tenant disclaiming the title of the claimant landlord and his relationship of tenancy literally knocks out the very bottom of statutory protection. This amounts to disclaiming the benefits available under the Bombay Rent Act. We are firmly of the view that it is open to a person to bring about by his own voluntary actions a situation which results in the cessation of relationship of landlord and tenant so as to render the provisions of the Bombay Rent Act inapplicable to the facts of his case. In such cases the dispute between the claimant owner and the occupant ceases to be a dispute between a landlord and a tenant in regard to any matter covered by the Bombay Rent Act. It becomes a dispute of titles and falls outside the purview of Section 28 of the Bombay Rent Act. In our opinion, the Bombay Rent Act does postulate an exercise in futility where a plaintiff is driven to the Rent Court even though the defendants do not accept him as then landlord.”

(20) It will be appropriate to refer to the stand of the defendants/tenants in the above reported case. The defendants No.3 and 4 who were tenants in the said matter claimed that they were paying rent to defendants No.1 and 2, who were owners of the suit property. According to them they were not liable to pay rent to the plaintiff. The defendants had categorically contended that they were tenants of the defendant Nos.1 and 2 and that status of plaintiff as landlord was disputed. The ratio of the said judgment cannot be made applicable to the present case since title of the plaintiff over the suit property or his status as landlord is not disputed. The dispute is only that at the time of inception of tenancy in the year 1960, Mohd.Siddique was a tenant in his individual capacity or as a sole proprietor of M/s. Rafique Kirana Stores or in other words, whether M/s. Rafique Kirana Stores was the tenant through its proprietor Mohd. Siddique. As observed above, a proprietorship concern is not a juristic person and it has no existence in law independent of the proprietor. The reference to proprietorship concern will always mean reference to proprietor. Having regard to the aforesaid, and also having regard to the fact that the status of plaintiff as owner and landlord is never disputed, the question of forfeiture does not arise at all. Likewise, there is no question of surrender of tenancy by Mohd. Siddique since he always claimed to be a tenant, although as proprietor of M/s.Rafique Kirana Stores.

(21) In the light of the reasons recorded above, it must be held that ingredients of Section 111(f) and (g) of Transfer of Property Act are not attracted. The substantial question of law No.2 framed in the appeal is therefore, required to be answered in favour of the appellants/defendants and against the respondent/plaintiff.

                   Substantial Question of Law Nos.1 and 3 :-

                   1) Whether the first appellate Court, while reversing the judgment and decree of the trial Court, recorded findings which can be described as perverse or unsustainable in law ?

                   3) Whether any of the appellants before the Court claimed tenancy in the capacity of legal heirs of the original tenant Mohammad Siddique ?

(22) As stated above, a proprietorship concern is merely a trade name and not a juristic person. However, both the learned Courts have misdirected themselves in recording findings with respect to whether Mohd.Siddique was inducted as tenant initially in the year 1960 or tenancy was created then in favour of M/s. Rafique Kirana Stores. Even if it is held that tenancy was created in favour of M/s. Rafique Kirana Stores it would mean that the tenancy was in fact in favour of Mohd.Siddique, its sole proprietor.

                   Substantial Question of Law No. 4 :-

                   4) Whether first appellate Court rightly granted damages and also rightly ordered mesne profit payable by the appellants to the owner of the suit premises ?

(23) Since the decree for possession cannot be sustained, question of granting damages or ordering an inquiry as to mesne profits does not arise, substantial question of law No.4 is, therefore, answered accordingly.

(24) In view of the reasons recorded above, Second Appeal is partly allowed in the following terms :-

                   1. The judgment and decree dated 20/11/2012, passed by the learned Adhoc District Judge-2 Amravati in R.C.A.No.154/2007 is quashed and set aside.

                   2. The judgment and decree dated 21/07/2007, passed by the learned Civil Judge, Junior Division, Chandur Railway in R.C.S.No.33/2004 is maintained.

                   3. Parties to bear their own costs. CIVIL APPLICATION (S) NO. 327 OF 2026

(25) For the reasons recorded in paragraph 17 (supra), civil application is rejected and disposed of accordingly.