1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 731 OF 2002 1 Rameshwar s/o Dwarkadas Mor dies through LRs Shivprasad s/o Rameshwar Mor age 54 years, occ. trade r/o Phool Bazar, Sadar Bazar Jalna, Tq. & Dist. Jalna. 2 Jugal s/o Rameshwar Mor age 52 years, occ. trade r/o Phool Bazar, Sadar Bazar Jalna, Tq. & Dist. Jalna. 3 Ramesh s/o Rameshwar Mor age 50 years, occ. trade r/o Phool Bazar, Sadar Bazar Jalna, Dist. Jalna. 4 Rajendra s/o Rameshwar Mor age 53 years, occ. Trade r/o Phool Bazar, Sadar Bazar Jalna, Dist. Jalna. 5 Sanjay s/o Rameshwar Mor age 37 years, occ. trade r/o Phool Bazar, Sadar Bazar Jalna, Dist. Jalna. 6 Smt. Shantabai w/o Rameshwar Mor age 76 years, occ. household r/o Phool Bazar, Sadar Bazar Jalna, Dist. Jalna. 2 7 Baby alias Prema d/o Rameshwar Mor age 39 years, occ. household r/o Phool Bazar, Sadar Bazar Jalna, Dist. Jalna. .. APPLICANTS VERSUS 1 Pukhraj s/o Hazarimal Bafna died by legal representatives 1a Parasmal s/o Pukhraj Bafna age 64 years, occ.advocate r/o Plot no. 94, N-3, CIDCO, Aurangabad. 1b Manakchand s/o Pukhraj Bafna age major, occ. business r/o House no. 2208, Phul Bazar Jalna. .. RESPONDENTS Shri M.K. Deshpande, Advocate for the appellants. Shri S.S. Bora, Advocate for the respondents. ===== CORAM : P. R. BORKAR, J. DATE : 29 th JUNE, 2010. ORAL JUDGMENT : 1 This is a revision petition filed by original plaintiff being aggrieved by reversal of judgment of trial court i.e. Civli Judge, Sr.Dn., Jalna in Regular Civil Suit no. 166/1987 decided on 16-12-1991 by the Additional District Judge, Jalna in Regular Civli 3 Appeal no. 24/1992 decided on 31-7-2001. 2 The case of the original plaintiff Rameshwar is that he is owner of house bearing no. 2208/2149 plate no. 1-9-28 situate at Phool Bazar, Jalna. It is a residential premises. Defendant Pukhraj who is present respondent is tenant. Agreed rent was Rs.17/- per month. Rent for 34 months i.e. from 16-1-1985 to 15-11-1987 was outstanding and therefore, the suit is filed for recovery of rent of Rs.578/-. Respondent / defendant filed written statement exh. 10 and stated that there was no relationship of landlord and tenant between the parties. He was not occupying the premises as tenant. According to him, he was in possession of the basis of the agreement of sale which was executed by predecessor in title of the plaintiff. It is specifically stated that 62 years before filing written statement, Jethmal Shivchand, the predecessor in title of present appellant, had entered into agreement of sale with Premraj Bafna, brother of 4 grand father of defendant, for consideration of Rs.1200/-, out of which Premchand has paid Rs.500/- as earnest money and Issar Pavati was executed and, thus, on the basis of agreement of sale, Premchand Bafna and after death of Premchand, defendant has been in possession of the property. 3 Trial court has come to conclusion that there was relationship of landlord and tenant. It was held that the defendant failed to prove the alleged agreement to sell and the suit was decreed. The Additional District Judge while deciding the appeal has not considered the pleadings of the defendant and simply framed two issues which are as follows :- 1 Is it proved by the respondent relationship as a landlord and tenant between him and the appellant ? 2 Is he entitled to claim recovery of rent as prayed for ? 4 After hearing both the sides and after going through the 5 judgment, the entire approach of the District Court appears to be erroneous in as much a it only considered the evidence of plaintiff / appellant and did not consider the case made out by respondent in its pleading and evidence. Civil courts are supposed to decide the matters on preponderance of probabilities. The entire approach of the District court appears to have been as if it is a criminal prosecution lodged against the original defendant by plaintiff and the entire burden to prove relationship was on the plaintiff beyond reasonable doubt. Absolutely no discussion whatsoever was made regarding the defence made out by the defendant in his written statement regarding agreement of sale. In my opinion, this is failure to exercise proper jurisdiction. In the circumstances,it is necessary to remand the matter for hearing the parties afresh and then pronouncing the judgment as required by law. 5 In these circumstances, the judgment and decree 6 dt. 31-7-2001 passed by the Additional District Judge, Jalna is hereby set aside. The parties are directed to appear before the District Court on 2-8-2010 at 11.00 a.m. The District Court is directed to restore the appeal on its file and proceed to hear the parties and decide the matter afresh preferably within three months after appearance of the parties. Registry to send R & P back to the District Court immediately. All questions are left open. Revision petition is accordingly allowed. Parties to bear their own costs. ( P. R. BORKAR, J.) dyb/office/cra731.02.odt