JUDGMENT
1.The second appeal has been filed by the original defendant no.1. The respondent no.1 is the original plaintiff and the respondent no.2 is the defendant no.2. For the sake of convenience, parties shall be referred to as “plaintiff” and “defendant nos.1 and 2”
FACTS
2.The plaintiff filed the suit for possession and damages against the defendant no.1. The defendant no.2, is a corporate body known as Nagpur Housing and Area Development Board, Nagpur. It is the case of the plaintiff that he was working in Pulgaon Cotton Mills Limited, Pulgaon. Similarly, the defendant no.1 was also working in the same mill. The plaintiff applied to the defendant no.2 for the allotment of the suit quarter under the scheme of hire purchase basis. The application was considered and he was allotted the suit quarter No.61 in Pulgaon old colony. It is his specific case that, he was put in possession on 1.12.1976 and he paid an amount of Rs.884/- as per the rules of the defendant no.2. It is the further case of the plaintiff that he started paying rent Rs.11.78 per month to the defendant no.2 regularly. It is thus his case that he had paid an amount of Rs.2,950/- as a complete consideration of the said quarter. It is further averred in the plaint that he had entered into an agreement to purchase the said quarter on hire purchase basis and he paid the consideration. The case of the plaintiff is that, however, in the first week of August, 1978, the defendant no.1 took illegal possession of the quarter in his absence and when the plaintiff returned in the month of October, 1978, he found that the defendant was occupying the quarter. The plaintiff also lodged a police complaint alleging that his articles in the house were missing.
3.Petitioner, therefore, filed the present suit for possession and damages on the ground that he is the owner of the premises and that the defendant no.1 is the trespasser. The defendant no.1 filed his written statement and denied all the claims of the plaintiff. According to him, he was not residing in the suit quarter, but he claimed the possession on the false ground. The defendants case was that the quarter in question was lying vacant since 1976 and, therefore, by virtue of the order passed by the respondent no.2, he occupied the said quarter in the month of September 1978 and started paying the rent. Thereafter, he was asked to purchase the said quarter under the hire purchase claim by defendant no.2 and accordingly he paid the said amount and he has been paying the rent upto date.
4.The trial court framed issues and the suit filed by the plaintiff was dismissed. Both the parties adduced evidence. The trial court relied on the letter of offer given by defendant no.2 to the plaintiff at Exh.26 dated 14.5.1979 and also Exh.30 which was the application made by the plaintiff to the defendant no.2. Similarly, the trial court also relied on Exh.66 which was the offer given to the defendant no.1 for the purchase of the same quarter by defendant no.2. This document also refers to the application of defendant no.2 dated 14.6.79. The trial court, relying on term no.12 of the said offer, came to the conclusion that the plaintiff did not comply with the terms and conditions of the said letter. Term No.12 stipulated that the balance amount has to be deposited within one month of the said letter and this was not complied by the plaintiff. The trial court came to the conclusion that though the offer was given to the plaintiff in respect of the said quarter prior in point of time to the defendant, in view of the non compliance of the terms and conditions of the offer, there was no concluded contract and that the said offer was not accepted and offer of the defendant which was made exactly after one month from the offer made by the plaintiff was accepted. It is relevant to note the date of offer made by the plaintiff and defendant no.1. The plaintiffs letter of offer is dated 14.5.79 which is at Exh.26 and the application of the defendant no.1 is dated 14.6.79.
5.In this view of the matter, the trial court dismissed the suit of the plaintiff. Plaintiff being aggrieved by the Judgment and Order of the trial court preferred an appeal before the 3rd Additional District Judge, Wardha by filing Regular Civil Appeal No.106 of 1986. The appellate court allowed the appeal of the plaintiff and decreed the suit. The original defendant no.1 has filed this second appeal challenging the Judgment and Order passed by the lower appellate court. The second appeal was admitted on 18.4.1990 and the following order was passed : “Admit. Notice on points mentioned in the appeal memo”
6.The substantial question of law which is raised by the appellant in the present appeal is whether in the absence of a final order of allotment transferring the ownership of the suit premises, a finding could be given that the plaintiff had become the owner of the premises and on the said basis direct that the possession be handed over to him.
7.I have heard the learned counsel appearing on behalf of the appellant-original defendant no.1 and learned counsel appearing on behalf of the respondent no.1-original plaintiff at length. The short question which falls for my consideration is whether there was a concluded contract between the defendant no.2 and the plaintiff and whether he was entitled to claim possession on the basis of an offer given by defendant no.2. The second question is whether on the basis of a prior offer given to the plaintiff, he would be entitled to continue in possession.
8.In the present case, the admitted facts are that the plaintiff and the defendant no.1 both were working in the Pulgaon Cotton Mill, Pulgaon. The quarter in question is not owned by the Pulgaon Cotton Mill. The said quarter is, in fact, a flat which is owned by the defendant no.2 Nagpur Housing and Area Development Board, Nagpur. The case of the plaintiff is that he had preferred an application to the defendant no.2 for allotment of the quarter. On the said application, an offer was given by the defendant no.2 by their letter dated 14.5.79. The said offer was not approval of allotment but was only an offer which was made subject to the compliance of certain conditions which were enumerated in the said letter. Condition No.12 which is found in the offer given to the plaintiff as well as to the respondent no.1 is that the balance amount has to be paid within one month from the date of the offer. There is no provision of relaxing the said condition. Thus, the said letter does not confer any right on the plaintiff. From the record, it is clear that the said amount was not paid within one month, and as a result, the defendant no.2 had given the offer to the defendant no.1 by their letter dated 14.6.79. The plaintiff appears to have paid the amount after six months and not within the stipulated period of one month. The possession of the defendant no.1 is admitted. The only question which remained to be decided is whether the possession is lawful or not, and whether the plaintiff was entitled to recover the possession only on the basis of the offer made by the defendant no.2.
9.In my view, no legal right accrued to the plaintiff on the basis of the said letter dated 14.5.79. On the contrary, the defendant no.1 was in possession, in view of the subsequent letter dated 14.6.79, which was given to the defendant. Though the plaintiff has stated that he was paying the rent to the defendant no.2 right from 1976, from the record, it appears that from his salary the said rent was deducted. However,it has not come on record that this amount was actually received by defendant no.2. In the absence of this vital piece of evidence, it cannot be said that the right of the plaintiff continued to subsist inspite of the non-compliance of the Condition No.12 in the said letter and offer.
10.It is made clear that so far as the deposit which are made by the plaintiff are concerned he shall be entitled to recover the amount paid by him to the defendant no.2 towards the deposit and rent with interest at the rate of 12 per cent, decree is confirmed only to that extent.
11.In this view of the matter, in my view, the finding of the lower appellate court is not correct. The Judgment and Order passed by the lower appellate court is, therefore, liable to be quashed and set aside. The second appeal is allowed. Under the circumstances, there shall be no order as to costs.