JUDGMENT
A.M. Khanwilkar, J.
1. By this writ petition under Article 227 the petitioners have challenged the judgment of the VII Addl. District Judge, Pune dated 6-10-1986 in Civil Appeal No. 13 of 1985. The petitioners are the successors in interest of the original plaintiff, who claimed to be the landlord in respect of the premises in question. Whereas, the respondents are the original defendants. The respondent No. 1 (original defendant No. 1) is the tenant in the suit premises.
2. According to the Ld. Counsel the conclusion recorded by the Appellate Court on issue No. 2 as to whether there existed relationship of landlord and tenant between the plaintiff and defendant No. 1 is erroneous.
3. Both the trial Court as well as the Appellate Court have referred to the chequered history of litigation between the petitioners and the respondents 2 and 3. It is seen that the respondent No. 2 (Original defendant No. 2 in the present suit) had instituted a suit being Special Civil Suit No. 85 of 1962 for a declaration that the plaintiff Shriram was not validly adopted son of Devalabai and that respondents 2 and 3 (original defendants 2 and 3 in the present suit) were the owners of the suit property. The parties eventually arrived at a compromise in the said proceedings in First Appeal No. 267 of 1964 before this Court. Clause 8 of the said compromise has direct bearing on the question raised in the present proceedings. Clause 8 is reproduced thus :
“8. It is agreed between the parties that the tenants of house No. 460, Guruwar Peth, will attorn to the plaintiffs with effect from 1-3-1974 and the tenants of house C.T.S. No. 478, Guruwar Peth, Poona, will attorn to defendant No. 1 with effect from 1-3-74 and the parties will co-operate with each other in that behalf.”
4. Later on it is stated that the plaintiff gave notice to the tenants in the suit building including the respondent No. 1 (original defendant No. 1). Since the respondent No. 1 did not pay the demanded amount, the original plaintiff filed suit against the respondent No. 1 being Suit No. 3233 of 1974 for possession of the suit premises and arrears of rent. The defence of the respondent No. 1 in the said suit was that there was no relationship of landlord and tenant between him and the original plaintiff. The said proceedings came right upto this Court in Writ Petition No. 51 of 1978 and this Court dismissed the plaintiff’s suit holding that the plaintiff did not comply with the terms and conditions of the compromise decree and as such the relationship of landlord and tenant between the plaintiff and the respondent No. 1 did not come into existence. It is after the said decision of this Court on 25-6-1981, the original plaintiff discharged the mortgage by depositing the amount in the proceedings between the plaintiff and respondents 2 and 3. The said deposit was made vide Ex. 55 on 17-7-1981. According to the plaintiff, the mortgage having been satisfied, the relationship of landlord and tenant between the plaintiff and respondent No. 1 came into existence. On these basis the plaintiff issued suit notice (Ex. 24) to the respondent No. 1 on 1-8-1981 demanding arrears of rent. The respondent No. 1 disputed his liability to pay any rent. In the first place it was contended that the relationship of landlord and tenant between him and plaintiff did not come into existence as there was no valid attornment. Even on merits, the respondent No. 1 contended that he has already paid the entire rent and was not in arrears and as such there was no cause of action to institute this suit.
5. The trial Court decreed the suit for possession holding that the respondent No. 1 was tenant and was a defaulter. The trial Court by its judgment dated 18-2-1984 ordered delivery of vacant and peaceful possession of the premises. The respondent No. 1 therefore carried the matter in appeal before the District Judge, Pune in Civil Appeal No. 13 of 1986. In the said appeal the respondent No. 1 challenged the findings of the trial Court on both the aforesaid issues. The Appellate Court after examining the materials on record held that there was no attornment by the defendants 2 and 3 in favour of the plaintiff and in the absence thereof it cannot be said that the relationship between the defendant 1 and plaintiff of landlord and tenant came into existence. The relevant finding arrived at by the trial Court in this behalf is found in para 18 of the judgment, which is reproduced thus:-
“From this clause, the defendant Nos. 2 and 3 were bound to see that the defendant tenant attorned to the plaintiff. If this term of the decree is not complied, the plaintiff’s remedy was to execute that decree of Spl. Civil Suit No. 85/1962. The plaintiff has not done this. So technically there is not attornment as defendant Nos. 2 and 3 took no steps of attornment. The attornment means accepting the third person as the landlord in place of the present landlord. This can be done only by attornment notice or by execution of decree of Spl. Civil Suit No. 85/1962, as section 109 of the Transfer of Property Act is not applicable. So Clause 8 of the compromise decree is not fulfilled and so the plaintiff is not the landlord and not entitled to bring the suit.”
6. Having recorded the said finding, in my view, it was not necessary for the Appellate Court to examine the matter any further on merits, nonetheless the Appellate Court considered the evidence on record and held that the respondent No. 1 (defendant No. 1) was not a defaulter and was not in arrears. This finding is in para 22 of the judgment of the Appellate Court which is reproduced thus :-
“So the defendant has deposited Rs. 777.50 ps. in Court and he paid municipal tax Rs. 187. The total of Rs. 777.50 plus Rs. 187/- comes to Rs. 964.50 ps. The agreed rent was Rs. 10/- plus education cess of one room from the ground floor from Guruwar Peth, house No. 278. The arrears till the date of notice Ex. 25 dated 1-8-1981 comes to Rs. 890/-. The education cess comes to Rs. 35.60 ps. at the rate of four per cent. So the total dues come to Rs. 925.61 ps. Thus, the defendant tenant had already deposited in Court and towards taxes in all Rs. 964/- as shown above before the date of the suit notice. So no cause of action did survive. Therefore, the plaintiff is not entitled to get possession on the ground of default.”
7. I would now first consider the issue as to whether there was a valid attornment and the relationship of landlord and tenant between the petitioners and respondent No. 1 came into existence at all. In my view, the Appellate Court was right in observing that having regard to Clause 8 of the compromise decree arrived at between the plaintiff, the defendant 2 and 3 were bound to attorn the tenancy in favour of the plaintiff, but since the said defendants 2 and 3 had failed to do so it was incumbent upon the plaintiffs to execute the decree passed in Special Civil Suit No. 85 of 1962. The Appellate Court was right in concluding that since the plaintiff had failed to get the compromise decree executed, it cannot be said that the tenancy stood attorned in law or even in fact. Once this conclusion is reached, the Court was bound to dismiss the suit for possession and for recovery of arrears filed by the plaintiff against the defendant No. 1 for the simple reason that unless the relationship of landlord and tenant is established the suit as filed cannot be said to be maintainable in law. The suit as filed under the provisions of the Bombay Rent Act, could be maintained only when the relationship of landlord and tenant existed between the parties. In the circumstances, I hold that the suit as filed by the plaintiff was not maintainable.
8. Now, I would proceed to examine the second issue raised before me as to whether the defendant No. 1 was a defaulter. The finding recorded by the Appellate Court on this issue is already extracted in the foregoing paras. From the said finding it is evident that the total amount which was liable to be paid was Rs. 925-61 ps. but the defendant No. 1 had already paid in the Court and towards taxes a total sum of Rs. 964/-, which is more than the amount which was due and payable. In the circumstances, by no stretch of imagination, a finding can be recorded against the defendant No. 1 that he was a willful defaulter at any point of time. Apart from the fact that there is no reason to interfere with the said finding of fact recorded by the Appellate Court, what appears to me is that the petitioners have not challenged the said finding in the grounds of writ petition filed before this Court. Even during the hearing the Ld. Counsel for the petitioners was unable to successfully assail the said finding. In the circumstances, even assuming, that the suit filed by the plaintiff for possession was maintainable, even then the same ought to have been dismissed because there was no cause of action to institute the said suit as the respondent No. 1 (defendant No. 1) was not a defaulter within the meaning of section 12(3)(a) of the Bombay Rent Act.
9. At this stage, the Ld. Counsel for the respondent No. 1 contends that since there has been no attornment so far, he would continue to pay the rent to the respondents 2 and 3 until an attornment is done in favour of the plaintiff. In view of the findings recorded in this proceedings that there is no valid attornment in favour of the plaintiff, the respondent No. 1 is under an obligation to pay the rent regularly to defendants 2 and 3 until a valid attornment is made in favour of the plaintiff (petitioners).
10. For the aforesaid reasons, I am of the view that the writ petition is devoid of merits. Accordingly, the writ petition is dismissed with no order as to costs.