1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk SUIT NO. 1377 OF 2004 Sadanand Raju Shetty .. Plaintiff Vs. Kishinchan V. Khemani & Ors. .. Defendants. Mr. P. R. Kadam for the Plaintiff. Ms. Pratik Pawar i/b AZB & Partner & Partner for Deft. No.1. Mr. S. P. Dubay i/b B. M. Shaikh for Defendant No.5. Mr. R. B. Paranjape with Mr. M. M. Vaidya for Deft. No.6. CORAM : MRS. R. S. DALVI, J. Date of reserving the order : 30th April, 2010. Date of pronouncing the order : 17th June, 2010. JUDGMENT 1. The Plaintiff claims tenancy in respect of the business and the premises of M/s. Kohinoor Restaurant at 107, Walchand Hirachand Marg, Opposite GPO, Fort, Mumbai from Defendant No.6, the landlord of the premises upon the transfer executed by the partners of M/s. Kohinoor Restaurant who carried on the business in the suit premises earlier. One Meharban Khodadad Irani initially carried on the business since 1957 with Defendant Nos.3 & 4. The said Irani died in Iran on 10.03.1983 (the deceased). The other two partners themselves and/or through their Constituted Attorney transferred the partnership premises to the Plaintiff. The Plaintiff applied for transfer of tenancy from Defendant No.6 the landlord. The Defendant No.6 has 2 transferred the tenancy of M/s. Kohinoor Restaurant to the Plaintiff at a rent higher than the rent paid by the partnership firm earlier. 2. Defendant No.5 initially claimed to be the nephew of the deceased M. K. Irani. He claimed to be a statutory tenant under Section 5 (11) (c) of the Bombay Rent Act then in force as the person carrying on the business of running the restaurant in the suit premises with the deceased at the time of the death of the deceased. His suit was dismissed. The Appeal therefrom was dismissed. The Revision therefrom was dismissed. The SLP filed in the Supreme Court therefrom was also dismissed. He is, therefore, not a statutory tenant who carried on the business with the deceased at the time of the death of the deceased. 3. He nevertheless continued in possession. His possession was under lawful authority. The Plaintiff has sought recovery of possession from him. 4. Defendant No.5 has to show his juridical possession from lawful authority. If the deceased carried on the business in partnership with others, Defendant No.5 who is admittedly not a partner cannot claim to be in lawful possession. Defendant No.5 has sought to show that the deceased carried on the business singly as a sole proprietor of M/s. Kohinoor Restaurant and he carried on the business 3 with him. In that case also his lawful authority to carry on the business is not seen. 5. Defendant No.5 has produced a host of documents being rent receipts, income tax returns, licences, correspondence, notices, applications for gas, electricity, documents relating to labour welfare etc. to show his possession. His actual possession in the suit premises is not disputed. Defendant No.5 has to show his lawful possession and the lawful authority and not mere possession which would be seen to be unlawful possession by holding over the suit premises without authority of law and for recovery of which the suit is filed. 6. Consequently the Plaintiff must show and prove his title in respect of suit premises. Upon such proof, the Plaintiff would be entitled to recover the possession from Defendant No.5. 7. Defendant Nos.1 & 2 have been joined as executors of the estate of the deceased under the Will of the deceased registered with Sub-Registrar of Assurances. The Will is not probated. Defendant Nos.3 & 4 are the partners of the deceased. Defendant No.6 is the landlord. None of the Defendants except Defendant No.5 has disputed the Plaintiff’s claim. Hence, upon the contentions of the Plaintiff and Defendant No.5, the following issues came to be framed which are answered as follows : 4 I S S U E S F I N D I N G S 1. Whether the Plaintiff proves his title in respect suit premises Yes. 2. Whether the Plaintiff is entitled to possession ? Yes. 3. What reliefs, if any, is the Plaintiff entitled to ? As per final order. 8. The Plaintiff examined himself and the Manager of the landlord. The Plaintiff has got produced certified copies of the papers and proceedings in the Small Causes Court Suit filed by Defendant No.5 for declaration of his alleged tenancy as the statutory tenant. This carries the presumption of correctness as certified copies of judicial proceedings. The Plaintiff has produced and must prove the documents relating to his title which shall be dealt with presently. The Plaintiff has also produced application made by the Plaintiff to various authorities consequent upon the transfer of the tenancy and the business of M/s. Kohinoor Restaurant to him. Once the Plaintiff proves his title, recovery of possession of the premises to which he has shown title must follow as a matter of course. 9. Defendant No.5 has examined himself. He has produced the documents showing his possession in the suit premises as aforesaid . The authorities under which he claimed possession must be shown by him to claim juridical possession. 5 10. It is based upon such evidence with the issue of title is required to be determined. Since it relates to the title in respect of immovable property which can be acquired only under documentary evidence, the Plaintiff’s Advocate has prudently not even referred to the oral evidence of the Plaintiff. Such evidence would be excluded by the documentary evidence. 11. The Plaintiff has however been extensive cross- examined. Though most of 747 questions put to him are rather irrelevant and unnecessary, Mr. Dube Advocate on behalf of Defendant No.5 took me through some of the important answers given by the Plaintiff to contest the Plaintiff’s title and the consequent right of recovery of the possession. ISSUE NO. 1 12. The Plaintiff has relied upon and produced the original carbon copy of the initial Indenture of Partnership entered into by the deceased with Defendant Nos.3 & 4 on 01.09.1957. The Plaintiff has also relied upon and produced the certified copy of the Will of the deceased registered with the Sub-Registrar of Assurances at Bombay. 13. Along with certified copy of the registered Will of the deceased, the Plaintiff has deposed that the carbon copy of the original Partnership Deed of 1957 and the photo copy 6 of the Will of the deceased partner of Defendant Nos.3 & 4 were given to the Plaintiff at the time of the transfer of the business and tenancy right of M/s. Kohinoor Restaurant. 14. The aforesaid carbon copy and the photo copy of the Partnership Deed and the Will would only show that these documents contained the signatures of the executants and the fact of its due attestation and execution under Section 90 of the Indian Evidence Act. It would not prove the truth of the contents of those documents. The carbon copy of the Partnership Deed dated 01.09.1957 though marked Exh.A in evidence can be considered only to the extent that it contains the signatures of the three partners mentioned therein. Similarly the photo copy of the Will of the deceased shows that it was executed by the deceased and attested by the two attesting witnesses. 15. The certified copy of the Will produced from the record of Sub-Registrar of Assurances, Mumbai as a public record would carry a presumption of the correctness of the fact that such document was registered. Upon seeing the signature of the deceased on the Will from its photo copy it can be taken that the certified extract of the Will of the deceased was Will of the deceased registered with the Sub- Registrar of Assurances. That Will has not been probated. Hence, other than the fact that the document as such was registered with the Sub-Registrar of Assurances, it cannot prove the truth of its contents. Om Prakash Berlia Vs. UTI 7 (AIR 1983 Bom. 1) 16. The transfer of the premises has been effected under writing executed on stamp paper dated 3rd June, 1996 by the Constituted Attorney of Defendant No.3 and personally by Defendant No.4. Defendant No.3 was residing in Iran at the relevant time. He executed a Power of Attorney in favour of one Ruhiya in Iran. The true translation of the Power of Attorney made by the justice, administration of the Islamic Republic of Iran has been produced under its official seal and sent to the Consulate of India in Iran. Such Power of Attorney would be admissible in evidence under Section 85 of the Indian Evidence Act. It is marked Exh.F in evidence upon it being produced through proper custody. Under such Power of Attorney the said Ruhiya has executed the writing of transfer of the tenancy and the business of M/s. Kohinoor Restaurant to the Plaintiff. The transferred document is also signed by Defendant No.4. Defendant Nos.3 & 4 have not opposed the Plaintiff’s action. They have not appeared in the Court despite service. The Plaintiff has accepted possession of the premises of M/s. Kohinoor Restaurant under a signature which he has identified. The Transfer Deed marked Exh.1 in evidence is accordingly proved. One of the executors of the Will of the deceased has consented to the transfer and signed accordingly. He is Defendant No.1 who has signed for self and for Defendant No.2. 8 17. The transfer has been executed for consideration of Rs.5 lacs paid on 3rd June, 1996 by three cheques to Defendant Nos.3 & 4 as partners of the deceased and Defendant No.1 for self and on behalf of Defendant No. 2 as the executors of his Will. 18. The Plaintiff applied to the landlord Defendant No.6 for obtaining transfer of his tenancy. The landlord transferred the tenancy to the Plaintiff upon the letter received from the partners of M/s. Kohinoor Restaurant. Contract of tenancy between Defendant No.6 and the Plaintiff is for payment of rent of Rs.800/- p.m. in the place and stead of the rent of Rs.239.30 paid earlier by M/s. Kohinoor Restaurant. The Plaintiff paid a security deposit by three months rent as well as the rent for the initial month of June, 1996. Part of Exh.J colly are the said two receipts. 19. The Plaintiff has thereafter paid rent at the rate of Rs.800 p.m. to the landlord under the rent receipts Exh.J colly. 20. The Plaintiff has accordingly acquired his title from the owners of the business of M/s. Kohinoor Restaurant being the two surviving partners, Defendant Nos.3 & 4 as well as from the owner of the premises, Defendant No.6. 21. The Plaintiff applied for the necessary licences 9 of the Municipality and Electricity Company by his letters addressed to them and received by them being Exhs. M & N colly. Defendant No.5 objected to the grant of those licences but with which this suit is not concerned. 22. As the Plaintiff’s title has been validly acquired, the Plaintiff would be entitled to possession of the premises belonging to him. 23. Defendant No.5 has however contended that he continues in possession and has resisted recovery of possession from the Plaintiff. Defendant No.5 has produced rent receipts prior to 1996 to show that he was in possession and he carried on business in the suit premises. The rent receipts produced by him stand in the name of the deceased, M/s. Kohinoor Restaurant. If the deceased was alone entitled to the tenancy rights as a sole proprietor of M/s. Kohinoor Restaurant, his heir and legal representative or the person carrying on business with him at the time of his death would be entitled to the tenancy rights under Section 5 (11) (c) of the Bombay Rent Act which was in force at the relevant time. The claim of Defendant No.5 as nephew of the deceased carrying on business with the deceased at the time of his death has been rejected up to the Supreme Court and cannot be gone into. 24. Defendant No.5 has produced certain income tax returns and intimations of Income Tax Authorities. 10 These show his name as a proprietor of M/s. Kohinoor Restaurant. That was how Defendant No.5 described himself. Since Defendant No.5 admittedly was in possession, albeit wrongfully and unlawfully, these documents would be in his name and would be received by him. These documents would not show the lawful possession of Defendant No.5. 25. Defendant No.5 has produced as Exh.D-5/6 photo copies of the licences in the name of the deceased and and Defendant No.4. These documents itself show the right of Defendant No.4 also as a licencee of the Municipality. This would not have been so if the deceased was not his partner. The licence is a renewal licence. It shows an old licence No. 7441 issued in 1986. 26. Still earlier licences produced by Defendant No.5 as Exh.D-5/7 issued on 31.03.1974 also stand in the names of deceased and Defendant No.4. Similarly other licences stand in these two names. These documents of Defendant No.5 disprove the case of Defendant No.5 that the deceased was the sole proprietor and Defendant No.5 carried on the same business as sole proprietor under any lawful authority. 27. Further documents produced by Defendant No. 5 in the name of M/s. Kohinoor Restaurant are irrelevant to the issue. 11 28. The Advocate for the Plaintiff drew my attention to a receipt for advance payment of tax paid to Reserve Bank of India on behalf of the firm by Defendant No.4 which has been receipted by Reserve Bank of India under its stamp dated 11.09.1968. This document, marked ‘Exh.E’ in evidence, shows Defendant No.4 to be a partner of the deceased. Similarly the registration certificate under Shops and Establishment Act since the inception stands in the names of the three partners for the establishment of M/s. Kohinoor Restaurant and is marked ‘Exh.H’ in evidence. 29. Thus the documentary evidence shows the lawful title of the Plaintiff and the right of recovery of possession by him. 30. However, Mr. Dube contended that the evidence of the Plaintiff negates his case. He drew my attention to the cross-examination of the Plaintiff which may be referred to in so far as it does not stand excluded by the documentary evidence under the principle contained in Section 91 of the Indian Evidence Act. This evidence would bring forth the following facts :- The Plaintiff was informed by one broker that a property is up for sale in about February, 1996. He visited the suit property and saw it from outside. He was informed that there were three partners. He met Defendant No.4. He 12 was informed about the partnership and the Will. He told Defendant No.4 to provide him a copy of the Municipal licence. He deposed about how he was given the copies of the documents by Defendant No.4 who was then in Mumbai. He has been asked about the contents of the documents which need not be adverted to. He met the Constituted Attorney of Defendant No.3. Much is made about fact that she was not examined. He was shown the rent receipts. These stood in the name of the deceased prior to June, 1996. He saw the death certificate of the deceased given by Defendant No.4. He paid Rs.5 lacs as shown in the documents. He was not handed over possession though there were no conductors or managers in the premises. He has been asked to state from memory about the dates, contents and names of documents and parties, which is redundant and need not be adverted to. He has stated about the fact that Defendant No.5 prevented his entry in the 2nd week of June, 1996. Defendant No.4 was with him at that time. He could not put his lock under suit premises (which is precisely why he has filed suit for recovery of his possession). He has been asked about the market price, which we are not concerned with because the parties have accepted the consideration paid more than a decade ago. He has deposed about how Defendant No.5 was a mere employee and all employees were daily wage earners. He has deposed that Defendant No.5 had himself opened an account in Bank of Maharashtra wherein he has described himself as employee of M/s. Kohinoor 13 Restaurant. He has produced the form and specimen signature card of Defendant No.5 showing his name, address and occupation given to Bank of Maharashtra where he opened his account. 31. The Advocate for the Plaintiff has got produced the documents produced by the parties in the suit filed in the Small Causes Court by Defendant No.5 for declaration of his tenancy. These documents are certified copies of judicial records for which there is a presumption under Section 80 of the Indian Evidence Act. These documents inter alia show the specimen signature card of Defendant No.5 showing his name and address at the suit restaurant and his occupation to be “service”. 32. Defendant No.5 made an application to the Sales Tax Officer for cancellation of registration under the Sales Tax Act. On the reverse of the application Defendant No.5 signed as a proprietor. He has himself written in his handwriting that the partnership was dissolved with effect from 01.01.1972 and one of the partners, the deceased, continued as proprietor from 01.01.1972 to 30.06.1977 with the help of Defendant No.5 who was his nephew. 33. Defendant No.5 claimed to have taken over the premises as proprietor w.e.f. 01.07.1977. It is interesting to note that the old registration stood in the name of the partnership firm. Defendant No.5 sought to have that 14 cancelled under his undated application. Though his claim of having taken over the business as the nephew of M. K. Irani as a continuing partner has been negated in the suit up to Supreme Court, his admission that the deceased was earlier a partner is confirmed. Defendant No.5 is, therefore, estopped from contending to the contrary as per the provisions of Section 115 of the Indian Evidence Act. 34. The affidavit of examination-in-chief of Defendant No.5 herein in his suit filed in the Small Causes Court being RAD Suit No. 326 of 1997 inter alia shows that somewhere in 1957 the deceased entered into a partnership with Defendant No.4 and therefore the licence was issued in their joint names. He renewed the licence from time to time as he was doing that business. He applied for the renewal and paid the fees and charges. 35. No part of the cross-examination of the Plaintiff has succeeded in challenging his title. The documentary evidence clearly establishes his title. 36. Issue No.1 is, therefore, answered in the affirmative. ISSUE NO. 2 :- 37. The Plaintiff was transferred the business and the tenancy rights of the partnership firm of M/s. Kohinoor Restaurant. The Plaintiff obtained the permission for such 15 transfer from his landlord. Defendant No.5 obstructed the plaintiff’s possession. The claim of Defendant No.5 has been negated up to the Supreme Court. The Plaintiff must be granted possession of the premises transferred to him for consideration. Hence Issue No.2 is answered in the affirmative. ISSUE NO. 3 :- 38. The Plaintiff has prayed for declaration that the use, occupation and possession of Defendant No.5 is illegal and unlawful and for an order against him to vacate the suit premises and hand over peaceful possession to the Plaintiff. The Plaintiff has also prayed for injunction against Defendant No.5 from entering upon the suit premises, committing nuisance and interfering with the Plaintiff’s use, occupation, enjoyment and possession of the suit premises as well as for compensation for wrongful use of the suit premises by way of mesne profit. The Plaintiff is entitled to each of these reliefs. 39. The suit is decreed in terms of prayer (a), (a-1) and (b). It is declared that Defendant No.5 is in wrongful use, occupation and possession of the suit premsies being M/s. Kohinoor Restaurant at Blackie House, 103/7, Walchand Hirachand Marg, Opp. GPO, Fort, Mumbai - 400 001. Defendant No.5 is directed to vacate the suit premises and hand over peaceful possession thereof to the Plaintiff. Defendant No.5 shall not enter upon, commit 16 nuisance or interfere with the Plaintiff’s use, occupation and enjoyment and possession in the suit premises. Defendant No.5 shall pay costs of this suit fixed at Rs. 25,000/- to the Plaintiff. The Defendant has been directed to pay mesne profit of Rs.7,500/- p.m. which shall be continued in place of the mesne profit and compensation of Rs.1 lac claimed by the Plaintiff until Defendant No.5 hands over possession of the suit premises. (R. S. DALVI, J.)