Upon failure to pay within time, interest shall be paid
Hon’ble A.M. Sapre and Navin Sinha, JJ., have held that in the light of such factual undisputed scenario emerging in the case, the appellant is held entitled to claim refund of earnest money of Rs. 1,00,000/- from the respondents. One cannot dispute the legal position that once the bargain to sale/purchase of any land fails, the unsuccessful buyer becomes entitled in law to claim refund of earnest money form the seller under section 22 of the Indian Specific relief Act. Similarly, the appellant is also, in turn, liable to restore the possession of the suit land pursuant to the impugned judgment/decree suffered by him and which we have upheld.
It is for these reason and with a view to do complete justice between the parties, we invoke our power under Article 142 of the Constitution and, accordingly, direct the respondents to refund a sum of Rs. 1,00,000/- to the appellant within 3 months from today. Faliure to refund Rs 1,00,000/- to the appelants within 3 months will carry interest at the rate of 6% p.a. on the said sum till payment.
Revanasiddayya v. Gangama, 2018 (181) AIC 11 SC.
Charges toward security services payable by auction purchaser
After the order of the Recovery Officer, respondent No. 1 filed MA No. 35 of 2009 before DRT seeking payment of charges for security services from the auction purchasers as directed by DRT in its order dated 24.07.2008 which clearly indicates that the first respondent had accepted the said order of DRT and also acted upon it.
Hon’ble Kurian Jospeph and R. Banumathi, JJ., have held that the High Court mainly seems to have proceeded with the matter as if it is a regular appeal arising out of the award passed by the MSMEDF Council and commenting upon the conduct of the Bank in not seriously pursuing the matter in challenging the award. The High Court did not consider the earlier proceedings before DRT, DRAT and before the High Court except merely referring to certain proceedings before DRT and DRAT. The High Court did not consider various orders passed by DRT and DRAT and the conduct of the parties who have been vigorously pursuing the matter before DRT, Recovery Officer and DRAT. The High Court also did not keep in view that the parties were bound by the earlier orders passed by DRT and Recovery Officer which clearly held that charges towards security services are payable only by the auction purchasers. The impugned order passed by the High Court thus suffers from serious infirmity and is liable to be set aside.
Bank of India v. Yadav Consultancy Services (P) Ltd, 2018 (181) AIC 14 SC.
There can be no adverse possession among family members
The defendants (appellants) and the plaintiff (respondent) are the members of one family. They are first cousins from their father’s side. The family owned ancestral properties which included the suit land in question and other properties also.
The defendants filed their written statement. The defendants (appellants), in clear terms, admitted the relationship between the defendants (appellants) and the plaintiff (respondent) including their ancestors as alleged by the plaintiff in the plaint. The defendants also admitted the existence and factum of oral partition effected among the family members as alleged by the plaintiff. The defendants, however, set up one Release Deed executed by their grandfather in 1940 and claimed share in the suit land on that basis. They also relied on some mutation entries to claim share in the suit land and also set up a plea of adverse possession over the suit land and claimed that they have become the owner of the suit land by virtue of adverse possession on account of their long, Peaceful and continuous possession.
Hon’ble A.M. Sapre and Navin Sinha, JJ., have held that it is not in dispute that the defendants (appellants) admitted the relationship between the parties. It is also not in dispute, as was admitted by the defendants (appellants), that the parties through their ancestors had effected oral partition as far back in 1935 and that the defendants’ ancestors were also parties to such partition and the same was implemented in letter and spirit by allotting each of the members of the family their respective share and also by getting the names of owners in Revenue Records.
In our opinion, the stand taken by the defendants was wholly inconsistent. They first set up a plea of adverse possession but it was rightly held not proved. The defendants, however, did not challenge this finding in the second appeal, which became final. Even otherwise, the plea of adverse possession was wholly misconceived and untenable. It is a settled law that there can be no adverse possession among the members of one family for want of any animus among them over the land belonging to their family.
Naryegowda v. Ramagowda, 2018 (181) AIC 20 SC.
Transfer of interest in tenancy against agreement is not valid
After expiry of the original term of lease, landlord (Nazar Mohammad Zaidi) filed ejectment suit in SCC Suit No. 2 of 1981 for eviction of defendants/tenants inter alia on the pleas:- (i) that the period of lease has expired; the defendants/tenants have failed to get the fresh lease deed executed at the enhanced rent of Rs. 800/- per month; (ii) the defendants/tenants have put up construction of shops in the suit premises and let out the same to third party in violation of the terms of the rent agreement; and (iii) default in payment of rent and municipal tax by the defendants.
Hon’ble Kurian Joseph and R. Banumathi, JJ., have held that on those issues, the Courts below recorded findings that the rent agreement nowhere prohibited any of the tenants from transferring their interest in tenancy and therefore, here was no violation of any of the terms of the rent agreement. In noting so, the Trial Court lost sight of the fact that in the rent agreement, parties specifically incorporated Clause (9), permitting sub-letting by tenants. Had the parties agreed to create or transfer of interest in the tenancy in favour of third party, they would have added a specific term in that regard in the rent agreement. Though, sub-letting of the premises for commercial purpose was agreed to by the original parties, transfer of interest in tenancy leading to creation of third party interest in the suit property could not have been done in the absence of a specific term in the rent agreement. Thus, the respondents-tenants are liable to be evicted on the ground of violation of terms of rent agreement by transfer of interest in tenancy to respondent No. 3 — Mohd. Ilyas alias Chaman.
Smt. Syed Sughra Zaidi v. Laeeq Ahmed, 2018 (181) AIC 23 SC.