Case: Krushnarao Chandusa Solanki Vs. Miraj Real Estate and Investment Company Private Limited & Others

By this appeal, the appellant has taken an exception to the Judgment and Decree dated 28th February 2011 passed by the learned Civil Judge (S.D.), Kolhapur.2. The appellant is the defendant and the respondents are the plaintiffs. For the sake of convenience, the parties are hereinafter referred to with reference to their status before the Trial Court. The suit property forms part of a larger property bearing CTS No.340 admeasuring 6600 sq. meters situated at E Ward, Station Road, Kolhapur. The suit property is more particularly described in paragraph 1 of the plaint which admeasures 6000 sq meters.3. The first plaintiff is a private limited company and the plaintiff nos.1-A and 1-B are the Directors of the first plaintiff company. It is alleged in the plaint that the second plaintiff was the original owner of the suit property. It is alleged that by an agreement of leave and licence dated 24th September 1992, the second plaintiff had put the first plaintiff company in possession of the suit property. It is alleged that both the Directors of the first plaintiff-company were residents of Pune and therefore, the Board of Directors of the first Plaintiff-company by a resolution dated 14th October 1992 authorised the defendant to obtain electricity connection, water connection, a licence under the Bombay Shops and Establishment Act in respect of the suit property on behalf of the first plaintiff. A reference is made to the letter dated 16th October 1992 sent by the first plaintiff to the defendant enclosing therewith a true copy of the resolution dated 14th October 1992 passed by the Board of Directors of the first plaintiff-company. It is alleged that the first plaintiff having faith in the defendant appointed him as a caretaker of the suit property on behalf of the first plaintiff.4. It is alleged in the plaint that the defendant misused the authority conferred on him and instead of obtaining electricity and water connection in the name of the first plaintiff, he obtained the same in his own name. It is alleged that by taking undue advantage of absence of the Directors of the first plaintiff, the defendant carried out construction of six sheds on the suit property totally admeasuring 3177 sq. ft. It is alleged that the sheds are made of iron pipes, iron angles and tin sheets. It is alleged that when the Constituted Attorney of the second plaintiff visited the suit property in December 2001, he realized that the defendant without consent of the plaintiffs has obtained licences to run a hotel and he is running a hotel in the suit property.5. On 26th December 2001, the first plaintiff informed the Executive Engineer of Maharashtra State Electricity Board to disconnect the electricity supply to the suit property. By resolution dated 5th January 2002 passed by the Board of Directors of the first plaintiff-company, it was resolved to take legal action against the defendant after cancellation of the authority conferred on him as the caretaker. Accordingly, a legal notice was issued by the Advocate for the plaintiffs on 15th February 2002 to the defendant and by the said notice, the authority conferred on the defendant by the resolution dated 14th October 1992 was revoked and he was called upon to vacate the suit property. By Advocates reply dated 26th February 2002, the defendant contended that the deceased second plaintiff had let out the suit property to him in the year 1992.6. It was contended in the suit that the defendant has no right,title or interest in respect of the suit property and that the possession of the defendant over the suit property was illegal and unauthorised. Therefore, the suit was filed for possession, mesne profits etc.7. The defendant contested the suit by filing his written statement. He pleaded ignorance about the contention that the first plaintiff was a registered company and that the plaintiff Nos.1-A and 1-B were the Directors of the first plaintiff-company. He denied that the second plaintiff handed over possession of the suit property to the first plaintiff-company. He denied that he was merely a caretaker of the first plaintiff in respect of the suit property. The specific case made out is that the suit property was lying unused and certain persons were using it for running illicit business. The second plaintiff was known to him. It is the case of the defendant that in September 1992, the second plaintiff called him at Pune and offered to give the suit property on yearly rent of Rs.50,000/-. The defendant accepted the offer and paid yearly rent of Rs.50,000/- for the year 1993-1994 in cash to the second plaintiff. It is contended that considering the status of the second plaintiff, the defendant did not insist on the second plaintiff issuing a rent receipt.It is contended that the defendant carried out repairs to the structures on the suit property by spending lacs of rupees. He made the structures fit for running a hotel and office use and by approaching the police he stopped illegal activities going on in the suit property. It is alleged that the defendant got released the suit property from reservation under the development plan. It is alleged that after completely transforming the suit property, on 8th January 1993, the defendant opened Green Park marriage hall (multipurpose hall and a lawn). It is alleged that many persons attended the public function of inauguration. It is alleged that the defendant obtained necessary permissions and licences in his name. It is his case that the municipal taxes in respect of the suit property from 1992 to 1996 were paid by him which amounts were adjusted against the yearly rent. It is alleged that after improvements were carried out on the suit property, the second plaintiff insisted on payment of rent at the rate of Rs.1,00,000/- per annum. The rent tendered by the defendant to the second plaintiff was not accepted as the second plaintiff made exorbitant demand for the rent. It is alleged that the defendant is a protected tenant and therefore, the suit is liable to be dismissed.8. The Trial court framed various issues. The Trial Court held that the second plaintiff has proved that the suit property was given on leave and licence basis to the first plaintiff and that the first plaintiff authorised the defendant to act as a caretaker of the suit property. It was held that the defendant was authorised to obtain electricity connection as well as a licence under the Bombay Shops and Establishment Act on behalf of the first plaintiff. It was also held that the defendant illegally carried out improvements in the suit property. The Trial Court further held that the defendant failed to prove that he was the tenant of the suit property and that he was illegally carrying on business therein. The Trial Court passed a decree for possession in respect of the suit property after removal of the sheds therein. The Trial Court directed an enquiry to be held for determination of mesne profits.9. It is not in dispute that the impugned decree for possession has already been executed. There was an order passed by this Court directing that the appeal shall be heard finally. Therefore, appeal was taken up for final hearing.10. The learned counsel for the appellant has taken us through the pleadings, notes of evidence and material documents on record. He submitted that even according to the case of the plaintiffs, the second plaintiff is the owner of the property. He invited our attention to the averments made in the plaint and prayer clauses in the plaint. He submitted that the decree for possession is sought in favour of both the plaintiffs. His submission is that the case of the defendant is that he was inducted as a tenant of the suit property by the second plaintiff. He stated that the defendant has stepped into the witness box and has deposed about the payment of rent. He submitted that one Chandrasen Shinde, Constituted Attorney of the second plaintiff stepped into witness box who had no personal knowledge as regards the transaction between the second plaintiff and the defendant. He submitted that an adverse inference will have to be drawn on account of the non examination of the second plaintiff. He submitted that the fact that second plaintiff had given leave and licence to the first plaintiff to occupy the suit property has not been established. He pointed out that apart from the fact that the alleged leave and licence agreement dated 24th September 1992 has not been duly proved by producing the original, the purported agreement is typed on a stamp paper dated 25th September 1992 and still it is claimed that the said document was executed on 24th September 1992. He urged that the photocopy of the Leave and License document produced by the Plaintiff is a got up document. He submitted that the entire case of the plaintiffs is that the defendant is the caretaker appointed by the first plaintiff-company and that the first plaintiff-company was the licensee of the second plaintiff who was admittedly the owner. He submitted that unless the execution of a valid leave and licence agreement is proved, the plaintiffs cannot prove that the first plaintiff-company had an authority to appoint the defendant as a caretaker.He invited our attention to the leave and licence agreement at Exh.59/C and contended that the term of three years provided in the agreement has not been extended. He invited our attention to the suit notice issued by the first plaintiff dated 15th February 2002 to the defendant by which the defendant was called upon to remove himself from the suit property. He pointed out that it is merely stated therein that the second plaintiff has placed the first plaintiff-company in possession. He stated that there is no reference in the said notice to any such leave and licence agreement. He pointed out that even in the said notice issued by the Advocate for the first plaintiff, there is no assertion that the defendant was the caretaker appointed by the first plaintiff. He pointed out the reply dated 26th February 2002 issued by the Advocate for the defendant. He pointed out that in the notice issued by the Advocate for the plaintiff-company, reliance was placed on resolution dated 14th October 1992 of the first plaintiff and the letter of authority given to the defendant on 16th October 1992 by the first plaintiff. He stated that in the reply dated 26th February 2002, the defendant specifically denied to have any relationship with the first plaintiff. He pointed out that the defendant specifically pleaded in the reply that the second plaintiff had inducted the defendant as a tenant in the suit property from the year 1992. He pointed out the evidence on record as regards various payments made by the defendant to the second plaintiff as well as the amounts of property taxes paid from time to time by the defendant on behalf of the second plaintiff. He submitted that service of letter dated 16th October 1992 allegedly sent by the first plaintiff-company to the defendant has not been proved.11. He invited our attention to the evidence of Chandrasen Shinde, Constituted Attorney of the second plaintiff. He invited the attention of the Court to the cross examination of the said witness especially on the Power of Attorney at Exhibit 52. He pointed out that the perusal of the page 2 of the Power of Attorney shows that no power was conferred by the second plaintiff on the said Constituted Attorney in respect of the suit property. He pointed out from the evidence of the said witness that to the knowledge of the plaintiffs, the defendant was running a business of Mangal Karyalaya (Marriage Hall), Ice Cream Parlour, Restaurant, reception Hall in the suit property by taking necessary licences in his own name. He submitted that even going by the case of the plaintiffs, the defendant was placed in possession of the suit property on 17th October 1992 and thereafter, till the year 2002, never any objection was raised by any of plaintiffs to the defendant carrying out improvements and thereafter running the business. He pointed out that huge investment has been made by the defendant in improvements made on the property. He submitted that even going by the leave and licence agreement and assuming that it was valid, the second plaintiff had not conferred any authority on the first plaintiff to appoint any caretaker. He pointed out the admission of the witness Shri Chandrasen Shinde that when the defendant entered the property, electricity bills were in arrears which were cleared by the defendant. He pointed out the evidence of the said witness and in particular paragraph 12 thereof to show that the said witness admitted the drastic improvements made by the defendant in the suit property. He pointed out that the evidence of the defendant shows the extent of improvements carried out and on 8th January 1993, in a public function, multi-purpose hall and lawn made by the defendant was inaugurated by a well known political leader Shri Promod Mahajan.12. The learned counsel pointed out that it is not the case of the first plaintiff that any remuneration was agreed to be paid or was paid to the defendant for managing the property. He submitted that admittedly there is absolutely no evidence on record to prove that the first plaintiff had appointed the defendant as a caretaker. He submitted that the fact that the defendant was never appointed as a caretaker is clear from the fact that from the year 1993, the defendant after carrying out the major improvements started running independent business in the suit property and notice was issued by the first plaintiff only in February 2002. He urged that the entire plaint proceeds on the footing that the defendant was the caretaker and as the plaintiffs have failed to prove the said fact, the suit will have to be dismissed.13. He relied upon the telephonic conversation which is recorded by the defendant. He pointed out relevant portions of the cross examination of the Constituted Attorney of the second plaintiff as well as plaintiff Nos.1-A on the tape recorded conversation involving both of them which proves the payment of rent by the defendant. He submitted that the Constituted Attorney of the second plaintiff was not willing to give his voice sample. He submitted that there is enough evidence on record to prove the plea of tenancy raised by the defendant. He submitted that there was no explanation from the plaintiffs as to why the defendant was allowed to pay the property taxes. He submitted that in any case, an adverse inference will have to be drawn for not examining the second Plaintiff. He, therefore, submitted that the decree passed is completely illegal.14. The learned senior counsel for the plaintiffs invited our attention to the correspondence on record and evidence of the defendant and submitted that the defendant was fully aware of the resolution dated 14th October 1992 passed by the board of Directors of the first plaintiff-company. He pointed out that in the year 1992, the defendant had received a copy of the said resolution as well as a copy of the leave and licence agreement executed by the second plaintiff in favour of the first plaintiff-company. Notwithstanding this admitted position, the defendant has taken a dishonest stand in the written statement that he was not even aware that the first plaintiff-company is a private limited company and that the defendant did not know the first plaintiff-company. He pointed out that the defendant has dishonestly denied the knowledge of resolution dated 14th October 1992 and the leave and licence agreement as well as the letter dated 16th October 1992. He pointed out that if the Power of Attorney executed by the second defendant in favour of the said Shri Chandrasen Shinde read as a whole, it is apparent that the same also relates to the suit property. He invited our attention to the resolution dated 14th October 1992 passed by the board of Directors of the first plaintiff-company. He submitted that though the defendant was fully aware of the said resolution, even in the reply to the suit notice, the defendant has contended that he was not even aware about the existence of the first plaintiff-company. Pointing out the assertions made in the reply, he submitted that the averments made therein as regards the tenancy created by the second plaintiff are very vague. He submitted that the terms and conditions of the tenancy and even the rent agreed to be paid have not been set out in the reply.He invited the attention of the Court to the provisions of the Transfer of Property Act,1882 (hereinafter referred to as the said Act of 1882) and in particular section 107 thereof. He pointed out that the defendant has not pleaded that the tenancy was a month to month tenancy, but his contention is that the tenancy was yearly tenancy. He submitted that in view of section 107 of the said Act of 1882, tenancy could have been made only by a registered instrument. He submitted that it is not even the case of the defendant that any such instrument was executed. He submitted that prior to the reply sent to the suit notice, at no point of time, the defendant claimed to be a tenant of the suit property. He submitted that the alleged telephonic conversation relied upon by the defendant is not proved in accordance with law and no steps have been taken by the defendant to prove the said conversation. He submitted that in fact the witnesses could not have been permitted to be confronted with the conversation which was not proved. He submitted that in any event the Constituted Attorney of the second plaintiff could have deposed to the facts which are within his knowledge as a witness examined by the plaintiff. He submitted that there is absolutely no evidence in support of the plea of tenancy urged by the defendant. He submitted that the title of the second plaintiff is duly admitted and in absence of proof of any right in the defendant in respect of the suit property, the decree for possession must follow. The learned counsel for the defendant submitted that the plaintiffs have never objected to the defendant carrying out improvements in the property and belatedly a stand has been taken that the defendant is merely a caretaker. He urged that in absence of any proof, the allegation that the defendant was merely a caretaker cannot be accepted. He, therefore, submitted that the impugned decree cannot be sustained.15. We have given careful consideration to the submissions. The first the point which arises for determination is regarding the title of the plaintiffs. It must be noted here that even the defendant has admitted in paragraph 6 of the written statement that the suit property is owned by the second plaintiff. In fact, the specific case made out by him is that the defendant is the yearly tenant of the second plaintiff in respect of the suit property. Therefore, it is not in dispute that the second defendant is the owner of the suit property.16. As regards the status of the first plaintiff-company is concerned, we may note here that the case of the plaintiffs is that on 24th September 1992, an agreement of leave and licence was executed by the second plaintiff in favour of the first plaintiff-company in respect of the suit property for a period of three years. The plaintiffs are relying upon the resolution dated 14th October 1992 passed by the board of Directors of the first plaintiff-company by which the defendant was authorised to apply for electricity connection/water connection and licence or permit etc required by the first plaintiff to operate the activities as specified in the agreement. There is a letter dated 15th October 1992 (Exhibit-254) on record addressed by the defendant to plaintiff Nos.1-A and 1-B in which he has stated that as the agreement has not been received, the work of obtaining licences has remained pending. On this aspect, it will be necessary to make a reference to the cross examination of the defendant.In the cross examination, initially he claimed that he became aware of the first plaintiff-company only after filing of the suit. He admitted that by letter dated 15th October 1992 at Exhibit - 254, he had demanded the agreement from plaintiff Nos.1-A and 1-B. He admitted that he received a letter dated 16th October 1992 at Exhibit 92 (A copy thereof is also marked as Exhibit 61) sent by the plaintiff Nos.1-A on behalf of the first plaintiff-company. He admitted that the documents forwarded along with the said letter have been received by him. The said letter which was admittedly received by the defendant records that a copy of the agreement signed by the second plaintiff and the first plaintiff-company in connection with the suit property as well as the copy of the resolution were enclosed therewith. Thus, the defendant was fully aware as on 16th October 1992 of the leave and licence agreement executed between the second plaintiff and the first plaintiff-company and the resolution dated 14th October 1992 passed by the Board of Directors of the first plaintiff-company. By the said resolution(Exhibit-62), the defendant was authorised by the first plaintiff to apply for electric connection/water connection and for grant of licence/permission to operate the activities specified in the leave and licence agreement. Thus, the stand taken by the defendant in the reply to the suit notice and in the written statement that the defendant was not even aware about the existence of the first plaintiff-company is completely false. The statement made in the cross examination by the defendant that he became aware of the existence of the first plaintiff after institution of the suit is again blatantly false.17. Thus, as long back as on 16th October 1992, the defendant was aware that the first plaintiff was a licencee in respect of the suit property of the second Plaintiff and the first plaintiff-company had authorised him to apply for electricity and water connection as well as licence for carrying out the activities specified under the leave and licence agreement. Therefore, the fact that the first plaintiff-company was a licencee of the second plaintiff cannot be disputed by the defendant.18. The defendant has specifically admitted of having received the letter dated 16th October 1992 from the plaintiff No.1-A. The letter is on the letterhead of the first plaintiff and that the plaintiff 1-A has signed the same as a Director. The resolution dated 14th October 1992 was forwarded to him along with the said letter. The said resolution refers to the agreement. The said reference is obviously to the leave and licence agreement executed by the second plaintiff in favour of the first plaintiff-company. The letter authorises the defendant to apply for electricity connection/water connection, Shop Act or any other licence, permission etc required to operate the activities as specified in the agreement. The purpose specified in the leave and licence agreement is to start Ice Parlour or Mangal Karyalaya (marriage hall) or Reception Hall. Thus, the authority conferred on the defendant by the first plaintiff-company was confined to what is stated in the resolution. Though, the defendant received a copy of the said resolution and leave and licence agreement on 16th October 1992, he never disputed the authority of the first plaintiff-company in respect of the suit property.We may reiterate here that in paragraph 5 of the written statement, the defendant has categorically stated that he was not even aware that the first plaintiff-company was a private limited Company. In fact, he stated that he was not aware of the first plaintiff-company and that he did not have any relationship or contact with the said company. Similar contention has been raised by way of reply to the suit notice. Thus, the said stand taken in the pleadings is found to be false on evidence. If the resolution dated 14th October 1992 is read along with the covering letter dated 16th October 1992, there appears to be a substance in the contention of the plaintiffs that the defendant was appointed as a caretaker. If according to the defendant, he was not even aware of the existence of the first plaintiff-company, there was no occasion for the defendant to write a letter dated 15th October 1992 (Exh.254) addressed to the plaintiff Nos.1-A and 1-B. In fact, by way of reply to the said letter, the plaintiff No.1-B wrote the letter dated 16th October 1992.19. At this juncture, we may note here that some argument was made on the ground that though the leave and licence agreement is dated 24th September 1992, it is typed on a stamp paper dated 25th September 1992. At any stage after receiving a copy of the agreement way back on 16th October 1992, no grievance regarding the legality and validity of the said agreement was made by the defendant. Moreover, the plaintiff No.1-A in affidavit in lieu of examination-in-chief at Exhibit 252 has stated that the possession of the property was handed over to the first plaintiff-company on 24th September 1992. He stated that on 24th September 1992, he reached Kolhapur in the evening and therefore, the stamp paper could not be obtained on that day. The stamp paper was obtained on the next day. However, by mistake, the date on the agreement was typed as 24th September 1992. As stated earlier, from 16th October 1992 till the suit was filed, the defendant has never challenged the genuineness of the said agreement.20. Another issue canvassed by the defendant regarding the leave and licence agreement was that by way of an afterthought, the plaintiff no.1-A has stated in his affidavit in lieu of examination-in-chief that after expiry of original period of licence of 36 months, the period was extended till 23rd September 2005 and subsequently, the second defendant extended the period of leave and licence till 22nd September 2007. The resolution passed by the Board of Directors of the first plaintiff-company recording grant of first extension of licence 10 years is placed on record at Exhibit-265. A submission was made that the leave and licence agreement was not extended by a separate document in writing. Once we hold that there was a leave and licence agreement executed in September 1992 for a period of three years, the matter of extension of period of the licence is between the licensor and the licensee. Till the Maharashtra Rent Control Act,1999 came into force, there was no requirement of law that a leave and licence agreement has to be in writing. Therefore, there is no reason to disbelieve the case made out by the plaintiffs that the licence was extended till 22nd September 2007.21. Thus, the scenario which emerges is that the second plaintiff is the owner of the suit property and the first plaintiff-company was at the relevant time the licensee of the second plaintiff in respect of the suit property.22. Now the material question which is required to be considered is whether the defendant has established his plea of tenancy Before going to the oral evidence on record, we must note here that the plea of tenancy was raised first in point of time by the defendant while giving reply to the suit notice dated 15th February 2002. As stated earlier, in the suit notice, reliance has been placed on the resolution dated 14th October 1992 and the letter dated 16th October 1992 which we have referred earlier. In the reply dated 26th February 2002 and in particular paragraph 5 thereof, it is contended that the second plaintiff had given the suit property to the defendant from the year 1992 as a tenant and as per the agreement, the defendant carried out the repairs and improvements in the suit property in which he was carrying on the hotel business. It is alleged that the agreed rent has been paid to the second plaintiff and electricity and water bills as well as municipal taxes in respect of the suit property were being paid by the defendant.It must be stated here that the material particulars such as the date on which the tenancy was created is not set out in the reply. Even the agreed amount of rent has not been mentioned in the said reply. Thus, the plea of tenancy by way of reply to the suit notice is very vague and devoid of material particulars. Then, we turn to the written statement and in particular paragraph 13 thereof. It is stated that the suit property was lying vacant which was being used by various people for doing illicit business and the same was being unauthorizedly used by the anti social elements. The case made out by the defendant is that he was having a cold drink shop near the suit property and in September 1992, the second plaintiff called him to see her in her bungalow at Pune. It is pleaded that she requested the defendant to take the suit property on rent subject to condition of the defendant carrying out repairs to the structures and carrying out renovation. It is further contended that the agreed yearly rent was Rs.50,000/-. It is alleged that though the rent for the year 1993-1994 was paid by the defendant, the second plaintiff did not issue the rent receipts. It is contended that though the rent was paid, considering the status of the second plaintiff, the defendant did not insist on issuing receipts.23. To the affidavit in lieu of evidence, a tabular form has been annexed recording payments of various amounts made by the defendant. It is tried to be contended that certain amounts were paid towards the property taxes which were adjusted against the rent. However, no such case was made out in the reply to the suit notice or in the written statement.24. Now it will be necessary to make a reference to the oral evidence adduced by the parties. The plaintiffs examined one Shri Chandrasen Shinde claiming to be the Constituted Attorney of the second defendant on the basis of the Power of Attorney dated 28th August 2001. He claimed that he has been authorised even by the first plaintiff-company to depose on behalf of the company. He claimed that he was an employee of the first plaintiff-company. There is further affidavit in lieu of examination-in-chief filed by the same witness. In the first affidavit, the Constituted Attorney has reiterated the fact that the defendant was merely a caretaker.25. It will be necessary to make a reference to the Power of Attorney dated 27th August 2001 executed by the second plaintiff in favour of the first plaintiff-company. In the first paragraph of the Power of Attorney it is specifically stated that the second plaintiff had appointed the said Chandrasen Shinde as her attorney to do or execute all or any of the acts or things in connection with "the following properties hereinafter mentioned that is to say". The properties set out in the immediately following recital are open places, premises, agricultural lands etc, properties situated at Miraj, District Sangli and at Station Road, Kolhapur, bearing CTS No.340 known as Miraj House, Kolhapur. Only because in the fourth paragraph there is no specific mention of the suit property, a contention was raised that the said Chandrasen Shinde had no authority to act as Constituted Attorney of the second plaintiff in respect of the suit property. If the Power of Attorney is read as a whole, it is apparent that the Power of Attorney is also in relation to the suit property.26. As far as the objection to evidence of Chandrasen is concerned, the law is well settled in the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others (2005 (1) Mh.L.J. 1170). The said decision holds that the Constituted Attorney can depose only to the acts done by him in exercise of the powers conferred on him by the instrument, but he cannot depose in place of and instead of the principal. It is held that he could depose as a witness in his personal capacity and state on oath whatever knowledge he has regarding the case. It is observed that the Constituted Attorney can state on oath whatever knowledge he has about the case but he cannot appear in the capacity of the party. Further it is held that the Constituted Attorney cannot depose for the principal in respect of the matter which only the principal could have the personal knowledge. In the context of the law laid down by the Apex Court, the evidence of the Constituted Attorney will have to be appreciated. There are three affidavits in lieu of examination-in-chief filed by the said witness. In the first affidavit he has deposed about the resolution dated 14th October 1992 and the letter dated 16th October 1992. We have already discussed the evidence on this aspect. In the first affidavit, he has deposed to the facts stated in the plaint. In the second affidavit, he has deposed on the aspect of leading secondary evidence of leave and licence agreement dated 24th September 1992 by producing a photo copy thereof.It appears that under the orders of this Court dated 27th January 2005 in Writ Petition no.8018 of 2003, the plaintiffs were permitted to lead secondary evidence of the said document. In the second affidavit, he has deposed about the resolution dated 5th February 2002 of the first plaintiff-company conferring the powers on the said witness. The third affidavit is for denying the letters allegedly sent by the defendant to the second plaintiff on 12th December 1992, 15th December 1992, 7th June 2000 and 31st() June 2000. The first part of the cross examination is on the date on which the possession was handed over to the defendant and on the Power of Attorney. He admitted that in the suit property, there is a Mangal Karyalaya (marriage hall), ice cream parlour, hotel, reception hall and that the licences thereof are in the name of the defendant. He stated that there is no specific resolution passed for appointing the defendant as a caretaker. Further cross examination is as regards the date of the leave and licence agreement and the date of the stamp paper used for the agreement. He admitted that under the leave and licence agreement executed by the second plaintiff, no authority has been conferred on the first plaintiff to appoint anyone as a caretaker. Various questions were asked on the improvements carried out by the defendant in the suit property. The witness denied of any knowledge about it. He, however, stated that when the property was given to the defendant, there were arrears of electricity bills which amounts were paid by the defendant. He admitted that there were two electricity meters in the suit property standing in the name of the defendant. He denied the correctness of the suggestion that in view of the actions taken by the defendant, illegal use of the suit property was stopped.27. During the course of cross examination of the said witness, the transcripts of a tape recorded conversations and a cassette kept in a sealed envelope were produced on record. After hearing the tape, the witness claimed that the somebody else has spoken in the voice which is similar to that of his own. He stated that even the voice which appears to be of plaintiff no.1-A is again of some one else. The similar statements were made by him regarding the alleged voice of Shri R.S.Kulkarni who was an employee of the plaintiff. He stated that he was not prepared to record his voice sample before the Court. However, he was not prepared to get the samples of the voice and tape recorded conversation verified from an expert.28. The plaintiff no.1-A also filed an affidavit in lieu of examination-in-chief. He has explained as to how on the leave and licence agreement made on stamp paper of 25th September 1992, the date 24th September 1992 appears. He stated that a photo copy of the leave and licence agreement was found in the records of the second plaintiff and the original has been misplaced. He deposed regarding the extension of period of leave and licence agreement from 23rd September 1995 to 23rd September 2005 and from 23rd September 2005 to 22nd September 2007. Some criticism on this part of the evidence was made by the learned counsel for the defendant by pointing out that the Constituted Attorney of the second plaintiff who was examined earlier has not deposed about the extensions. We may note here that for the reasons recorded, we have already held that the plaintiffs have proved that the second plaintiff granted leave and licence to the first plaintiff the term of which was extended as alleged by the plaintiffs. We have also held that it was not mandatory at the relevant time to execute the leave and licence agreement in writing. We have held that the extension of leave and licence is a matter between the second plaintiff and the first plaintiff-company and therefore, there is no reason to doubt the case made out by the plaintiffs as regards the extension of leave and licence. In the cross examination, the plaintiff no.1-A stated that the second plaintiff will not be examined. He admitted that on the suit notice, there is no signature of the second plaintiff. He was confronted with the tape recorded conversation produced by the defendant. He stated that he can identify his own voice and till that date no one has imitated his voice. He denied that his voice appears in the tape recorded conversation.He stated that he was not willing to recite in his own voice as to what is purportedly recorded in the transcript. He also denied that the voice of Shri Chandrasen Shinde and Mr.R.K.Kulkarni appears in tape recorded conversation. He admitted that there is no resolution on record of the first plaintiff-company by which Accounts and Audit report were accepted. He admitted that he has not produced minutes books of the first plaintiff-company before the Court. He admitted that though from the date of incorporation till 5th June 2005, 76 meetings of the Company were held, in 61 meetings, nothing transpired. He admitted that though the first plaintiff-company has maintained a register of Directors, the same has not been produced. He denied the correctness of the suggestion that there was no authority given to the said Chandrasen Shinde as regards the extension of leave and licence agreement. He stated that there was no document executed under the signature of the second plaintiff regarding the extension of period of leave and licence agreement. In the cross examination, he pleaded ignorance about the suit notice. He stated that he was not present at the time of the execution of original leave and licence agreement. He denied the correctness of the suggestion that on 24th September 1992, the first plaintiff did not receive possession of the suit property from the second plaintiff. He stated that there was a writing executed by the second plaintiff in that behalf but he was unable to produce the same. He pleaded ignorance about the fact whether the first plaintiff has paid the electricity charges in respect of the suit property. He denied that at the instance of the second plaintiff, he demanded rent of Rs.50,000/- from the defendant.29. The defendant filed an affidavit in lieu of examination-in-chief. We may note here that the entire affidavit in lieu of examination-in-chief, the defendant has not deposed regarding the genuineness of the alleged tape recorded conversations. It was necessary for the defendant to state on oath the manner in which the conversations were recorded and the names of the persons whose voice was recorded. To the affidavit in lieu of examination-in-chief, a chart is annexed regarding the payment of rent. Perusal of the said chart shows that according to the case of the defendant, a sum of Rs.50,000/- was paid on 4th August 1992 to one D.S.Sabde, a representative of the second plaintiff. It is alleged that on 9th July 1993, a sum of Rs.10,000/- was paid in cash towards the rent to Shri Subhash Bedgekar, Engineer allegedly working with the second plaintiff and a sum of Rs.13,545/- was paid on 18th March 1994 to one Shri Kulkarni, alleged representative of the second plaintiff for payment of house tax. On 7th October 1994, a sum of Rs.13,000/- was paid to Shri Kulkarni, a representative of the second plaintiff towards rent and a sum of Rs.13,455/- was paid to Shri Lele, the Accountant of the second plaintiff on 12th October 1994 towards the balance rent.Apart from the fact that there is absolutely no documentary evidence of payment of the aforesaid amounts, there is no explanation as to why the entire amount of Rs.50,000/- was not paid at one stroke by the defendant. He claims that on 29th October 1994, a sum of Rs.50,000/- towards rent was paid to one Shri Sabde for which there is no evidence. It is alleged that on 31st March 1995, a sum of Rs.18,797/- was paid by the defendant to Kolhapur Municipal Corporation on account of house tax. It is stated that a sum of Rs.2033/- was paid on 25th July 1995 directly to the second plaintiff. It is further alleged that on 29th March 1996, the defendant paid a sum of Rs.14,999/- by way of taxes to the Municipal Corporation and a sum of Rs.35,001/- was paid in cash to the second plaintiff on 25th November 1996. It is alleged that in June 1996, a sum of Rs.50,000/-in cash was paid to the second plaintiff at Pune and similarly on 22nd November 1997, a sum of Rs.50,000/-was paid in cash to the second plaintiff. It is alleged that on 17th March 2001, a sum of Rs.50,000/-was paid to Mr.Shinde, a representative of the second plaintiff and a sum of Rs.50,000/-was paid by to him by encashing a cheque. It is alleged that on 17th March 2001 and on 30th October 2001, a sum of Rs.50,000/-each in cash was paid by the defendant. The first payment was allegedly made to Shri Shinde and the name of the person to whom the second payment was made is not disclosed.30. As we have pointed out earlier, in the reply to the suit notice dated 26th February 2002, it is not even stated by the defendant that the yearly rent was agreed to be Rs.50,000/-. Obviously, even the aforesaid particulars have not been set out in the reply. Even the total amount paid by the defendant is not set out in the reply. Even in the written statement, the defendant has not disclosed that the aforesaid amounts were paid by him. It is merely alleged that the rent for the year 1993-1994 in the sum of Rs.50,000/-was paid by the defendant himself to the second defendant at Pune but no receipt was issued. There is no specific reference to other payments in the written statement. Even the total amount paid is not disclosed in the written statement. Thus, the case sought to be made out regarding payment of amounts to various representatives of the second plaintiff towards rent is clearly an after thought. At no stage, the defendant has made any correspondence claiming that he was entitled to adjust the amounts allegedly paid by him by way of municipal taxes towards rent. It is pertinent to note that in the written statement and in particular in paragraph 13 thereof, the case of the defendant is that it was the second plaintiff who requested him to take the suit property on rent which was accepted by the defendant. This statement and even the agreed rent amount does not find place in the reply to the suit notice. Perusal of the affidavit in lieu of examination-in-chief made by the defendant shows that he has not come out with a case that it was the second plaintiff who requested him to take the suit property on lease.In the examination-in-chief, the defendant claimed that he was negotiating with the second plaintiff for grant of tenancy. There is no such plea in the written statement. He claimed that the plaintiff Nos.1-A and 1-B have participated in the negotiation. In the examination-in-chief of Nitin, the son of the defendant, he claimed that he was present at the time of creation of tenancy. He also claimed that there were negotiations held in which on some occasions, plaintiff nos.1-A and 1-B were present. All this appears to an afterthought. The defendant in the cross examination has again reiterated that he became aware of the existence of the first plaintiff-company only after filing of the suit. The said case made out is absolutely false, as on 16th October 1992 itself, the defendant was aware of the existence of the first plaintiff-company. In the cross examination, a question was asked to the defendant as to whether the property taxes from 1992 up to date have been paid by the second plaintiff, he stated that the amount was paid later on. When a question was asked to him as to whether while making correspondence he has informed the Municipal Corporation that he was the tenant, the defendant pleaded ignorance about it. A specific question was asked as to why he has used the letter of authority issued by the first plaintiff-company and the resolution of the first plaintiff-company for making applications in various offices though the defendant was claiming that he was not concerned with the first plaintiff, the defendants reply was that as the documents were sent by him, he has used the same.31. Considering the stand taken by the defendant in the reply to the suit notice and in the written statement, on careful reading of the evidence of the defendant, we find that the same does not inspire confidence. Even in the cross examination, he has maintained that he was not aware about the first plaintiff-company and he became aware only after filing of the suit. We have already observed that this is a false statement made by the defendant on oath.32. Before turning to the evidence of Nitin, it must be stated here that after the evidence of defendant, the witness Shri Chandrasen Shinde was recalled by the plaintiffs perhaps for bringing on record certain resolutions of the first plaintiff and the Will of the second plaintiff by which a bequest was made by her of the suit property. As noted earlier, the second plaintiff died during the pendency of the suit.33. As regards the evidence of Nitin, the son of the defendant, the same is on the lines of the defendant. In the cross examination, he stated that he was not aware about the correspondence made by his father about the suit property. He stated that after 1992, all transactions in respect of the suit property have been made by his father and he was not aware of the same. Even this witness has not deposed regarding the correctness of the tape recorded conversations. Hence, even the evidence of Nitin is not worthy of acceptance.34. The evidence of tape recorded conversations is also required to be discarded as there is no evidence adduced to show that the conversations recorded therein is of the persons who are named by the defendant.35. Thus, apart from the fact that the testimony of the defendant is not reliable, there is absolutely no evidence in support of the plea of tenancy of the defendant. The yearly tenancy has been pleaded by the defendant. Such a tenancy could have been created only by an registered instrument in view of Section 107 0f the said Act of 1882. Hence, in the facts of this case, non-examination of the second plaintiff is not fatal to the case of the plaintiffs.36. As pointed out earlier, the second plaintiff was admittedly the owner of the suit property. The defendant has not established any right to occupy the suit property as he did not claim any right save and except by way of tenancy. Thus,the defendant has no right to occupy the suit property. Even assuming that the plaintiffs have not proved that the defendant was a caretaker, the suit is on title. Therefore, the Trial Court has proceeded to pass a decree for possession. It is not possible to find fault with the said decree for possession. We may note here that the Civil Application no.2444 of 2012 records the admitted position that the decree for possession has also been executed. The appeal is devoid of merits and

Decision:
0[ds]In the cross examination, initially he claimed that he became aware of the firstonly after filing of the suit. He admitted that by letter dated 15th October 1992 at Exhibit254, he had demanded the agreement from plaintiffB. He admitted that he received a letter dated 16th October 1992 at Exhibit 92 (A copy thereof is also marked as Exhibit 61) sent by the plaintiffon behalf of the firstHe admitted that the documents forwarded along with the said letter have been received by him. The said letter which was admittedly received by the defendant records that a copy of the agreement signed by the second plaintiff and the firstin connection with the suit property as well as the copy of the resolution were enclosed therewith. Thus, the defendant was fully aware as on 16th October 1992 of the leave and licence agreement executed between the second plaintiff and the firstand the resolution dated 14th October 1992 passed by the Board of Directors of the firstBy the saidthe defendant was authorised by the first plaintiff to apply for electric connection/water connection and for grant of licence/permission to operate the activities specified in the leave and licence agreement. Thus, the stand taken by the defendant in the reply to the suit notice and in the written statement that the defendant was not even aware about the existence of the firstis completely false. The statement made in the cross examination by the defendant that he became aware of the existence of the first plaintiff after institution of the suit is again blatantlymay reiterate here that in paragraph 5 of the written statement, the defendant has categorically stated that he was not even aware that the firstwas a private limited Company. In fact, he stated that he was not aware of the firstand that he did not have any relationship or contact with the said company. Similar contention has been raised by way of reply to the suit notice. Thus, the said stand taken in the pleadings is found to be false on evidence. If the resolution dated 14th October 1992 is read along with the covering letter dated 16th October 1992, there appears to be a substance in the contention of the plaintiffs that the defendant was appointed as a caretaker. If according to the defendant, he was not even aware of the existence of the firstthere was no occasion for the defendant to write a letter dated 15th October 1992 (Exh.254) addressed to the plaintiffB. In fact, by way of reply to the said letter, the plaintiffwrote the letter dated 16th October 1992.Another issue canvassed by the defendant regarding the leave and licence agreement was that by way of an afterthought, the plaintiffhas stated in his affidavit in lieu ofthat after expiry of original period of licence of 36 months, the period was extended till 23rd September 2005 and subsequently, the second defendant extended the period of leave and licence till 22nd September 2007. The resolution passed by the Board of Directors of the firstrecording grant of first extension of licence 10 years is placed on record atA submission was made that the leave and licence agreement was not extended by a separate document in writing. Once we hold that there was a leave and licence agreement executed in September 1992 for a period of three years, the matter of extension of period of the licence is between the licensor and the licensee. Till the Maharashtra Rent Control Act,1999 came into force, there was no requirement of law that a leave and licence agreement has to be in writing. Therefore, there is no reason to disbelieve the case made out by the plaintiffs that the licence was extended till 22nd Septembergoing to the oral evidence on record, we must note here that the plea of tenancy was raised first in point of time by the defendant while giving reply to the suit notice dated 15th February 2002. As stated earlier, in the suit notice, reliance has been placed on the resolution dated 14th October 1992 and the letter dated 16th October 1992 which we have referred earlier. In the reply dated 26th February 2002 and in particular paragraph 5 thereof, it is contended that the second plaintiff had given the suit property to the defendant from the year 1992 as a tenant and as per the agreement, the defendant carried out the repairs and improvements in the suit property in which he was carrying on the hotel business. It is alleged that the agreed rent has been paid to the second plaintiff and electricity and water bills as well as municipal taxes in respect of the suit property were being paid by the defendant.It must be stated here that the material particulars such as the date on which the tenancy was created is not set out in the reply. Even the agreed amount of rent has not been mentioned in the said reply. Thus, the plea of tenancy by way of reply to the suit notice is very vague and devoid of material particulars.also filed an affidavit in lieu ofHe has explained as to how on the leave and licence agreement made on stamp paper of 25th September 1992, the date 24th September 1992 appears. He stated that a photo copy of the leave and licence agreement was found in the records of the second plaintiff and the original has been misplaced. He deposed regarding the extension of period of leave and licence agreement from 23rd September 1995 to 23rd September 2005 and from 23rd September 2005 to 22nd September 2007. Some criticism on this part of the evidence was made by the learned counsel for the defendant by pointing out that the Constituted Attorney of the second plaintiff who was examined earlier has not deposed about the extensions. We may note here that for the reasons recorded, we have already held that the plaintiffs have proved that the second plaintiff granted leave and licence to the first plaintiff the term of which was extended as alleged by the plaintiffs. We have also held that it was not mandatory at the relevant time to execute the leave and licence agreement in writing. We have held that the extension of leave and licence is a matter between the second plaintiff and the firstand therefore, there is no reason to doubt the case made out by the plaintiffs as regards the extension of leave and licence. In the cross examination, the plaintiffstated that the second plaintiff will not be examined. He admitted that on the suit notice, there is no signature of the second plaintiff. He was confronted with the tape recorded conversation produced by the defendant. He stated that he can identify his own voice and till that date no one has imitated his voice. He denied that his voice appears in the tape recorded conversation.As we have pointed out earlier, in the reply to the suit notice dated 26th February 2002, it is not even stated by the defendant that the yearly rent was agreed to be Rs.Obviously, even the aforesaid particulars have not been set out in the reply. Even the total amount paid by the defendant is not set out in the reply. Even in the written statement, the defendant has not disclosed that the aforesaid amounts were paid by him. It is merely alleged that the rentfor the yearin the sum ofpaid by the defendant himself to the second defendant at Pune but no receipt was issued. There is no specific reference to other payments in the written statement. Even the total amount paid is not disclosed in the written statement. Thus, the case sought to be made out regarding payment of amounts to various representatives of the second plaintiff towards rent is clearly an after thought. At no stage, the defendant has made any correspondence claiming that he was entitled to adjust the amounts allegedly paid by him by way of municipal taxes towards rent. It is pertinent to note that in the written statement and in particular in paragraph 13 thereof, the case of the defendant is that it was the second plaintiff who requested him to take the suit property on rent which was accepted by the defendant. This statement and even the agreed rent amount does not find place in the reply to the suit notice. Perusal of the affidavit in lieu ofmade by the defendant shows that he has not come out with a case that it was the second plaintiff who requested him to take the suit property on lease.Considering the stand taken by the defendant in the reply to the suit notice and in the written statement, on careful reading of the evidence of the defendant, we find that the same does not inspire confidence. Even in the cross examination, he has maintained that he was not aware about the firstand he became aware only after filing of the suit. We have already observed that this is a false statement made by the defendant on oath.As regards the evidence of Nitin, the son of the defendant, the same is on the lines of the defendant. In the cross examination, he stated that he was not aware about the correspondence made by his father about the suit property. He stated that after 1992, all transactions in respect of the suit property have been made by his father and he was not aware of the same. Even this witness has not deposed regarding the correctness of the tape recorded conversations. Hence, even the evidence of Nitin is not worthy of acceptance.34. The evidence of tape recorded conversations is also required to be discarded as there is no evidence adduced to show that the conversations recorded therein is of the persons who are named by the defendant.35. Thus, apart from the fact that the testimony of the defendant is not reliable, there is absolutely no evidence in support of the plea of tenancy of the defendant. The yearly tenancy has been pleaded by the defendant. Such a tenancy could have been created only by an registered instrument in view of Section 107 0f the said Act of 1882. Hence, in the facts of this case,of the second plaintiff is not fatal to the case of the plaintiffs.36. As pointed out earlier, the second plaintiff was admittedly the owner of the suit property. The defendant has not established any right to occupy the suit property as he did not claim any right save and except by way of tenancy. Thus,the defendant has no right to occupy the suit property. Even assuming that the plaintiffs have not proved that the defendant was a caretaker, the suit is on title. Therefore, the Trial Court has proceeded to pass a decree for possession. It is not possible to find fault with the said decree for possession. We may note here that the Civil Application no.2444 of 2012 records the admitted position that the decree for possession has also been executed. The appeal is devoid of merits