1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1608 OF 1992 (1) Smt.Vatsalabai S. Mulay Age about 65 years.Occ.Household. (2) Shri Prakash Sitaram Mulay Age about 31 years.Occ.Service. Both are are residing at 123-A, Mangalwar Peth, Pune 411 011. ..Petitioners. V/s. Shri Vishwas D. Joshi Age about 46 years, Occ.service, residing at 123-A, Mangalwar Peth, Pune 411 011. ..Respondent. Mrs.Suhasini Mutalik for petitioners. Mr.S.M.Gorwadkar i/b.Sushma Gorwadkar for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 26, 2008. DATE : AUGUST 26, 2008. DATE : AUGUST 26, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the Vth Additional District Judge, Pune dated 7th March, 1992 in Regular Civil Appeal No.729 of 1989. The Appellate Court was pleased to set aside the Judgment and Decree passed by the trial Court dismissing the Suit preferred by 2 the Respondent for declaration that he was tenant in respect of room No.3 in House No.123, Mangalwar Peth, Pune. 3. It is not in dispute that the Respondent was tenant in respect of room No.4, in House No.123. The Petitioners had succeeded in getting decree of eviction against the Respondent in respect of the suit premises. According to the Petitioners, as a counterblast to the said proceedings, the Respondent had filed Regular Civil Suit No.788 of 1986 for declaration that he was tenant in respect of room No.3 situated in House No.123, Mangalwar Peth, Pune. The Petitioners denied the relationship of landlord and tenant with the Respondent in relation to the said room No.3 in the House property CTS No.123. The parties adduced oral as well as documentary evidence. The trial Court vide Judgment dated 28th April, 1989 was pleased to dismiss the Suit preferred by the Respondent. The trial Court found that the Respondent/tenant being the Plaintiff, was liable to establish the case made out by the tenant in respect of the room situated in house No.123. The trial Court adverted to the documentary evidence produced by the Respondent No.1 and analysing each of the documents took the view that the fact that the 3 Respondent was occupying room No.3 as tenant thereof was not established by the Respondent/Plaintiff. The trial Court referred to the piece of documentary evidence in the form of Tax Assessment Register Exh. 54 and 54 containing entries for the year 1981-82, 82-83 and 83-84. Indeed, these entries would indicate that the Respondent was occupying room No.3. However, the trial Court opined that the said documentary evidence was of no avail to the Respondent/plaintiff. That is because, the said documents pertained to period after the Plaintiff had already deposed in January, 1981. The trial Court thereafter, went on to observe that in any case, the Respondent/Plaintiff did not examine any witness from the Municipal Corporation to show as to who had made the inspection and the entries in question. In other words, the trial Court opined that the contents of the said documents Exh. 54 and 55 were not proved. The trial Court has then adverted to the complaint filed by the Respondent/Plaintiff before the JMFC, Pune Exh. 62. On analysing the contents of the said documents, it proceeded to conclude that the case made out by the Respondent/Plaintiff in the said complaint and keeping in mind the evidence on record would belie the claim of the Plaintiff. The trial Court then proceeded to examine the stand of the 4 Plaintiff that the Defendant No.2 in his cross-examination has admitted certain facts. However, the trial Court negatived even that contention of the Plaintiff. Consistent with the said finding, the trial Court proceeded to dismiss the suit preferred by the Respondent/Plaintiff for declaration that he was tenant in respect of Room No.3. 4. The Respondent/Plaintiff carried the matter in appeal before the District Court being Regular Civil Appeal No.729 of 1989. The Appellate Court on the other hand, reversed the finding of fact recorded by the trial Court and instead proceeded to hold that the Plaintiff had established the fact that he was tenant in respect of room No.3 in House No.123. 5. The question that needs to be addressed in the present Writ Petition is: whether the approach of the Appellate Court is manifestly wrong or perverse, which has caused serious miscarriage of justice. For that, we will have to advert to the basis on which the Appellate Court proceeded to answer the issue in favour of the Respondent/plaintiff. The first aspect dealt with by the Appellate Court is that the Ration Card produced 5 by the Plaintiff would indicate that he was occupying premises in the suit house. The Suit House as is referred to earlier is House No.123, situated at Mangalwar Peth, Pune. The Suit House consists of separate rooms. Admittedly, the Respondent was occupying one such room being Room No.4. In the Suit instituted by the Respondent, he asserted right in respect of room No.3. Ration Card however, in no way reveals that the Respondent was occupying room No.3 as such. The fact that the Respondent was occupying some room in House No.123 which consisted of more than one room, does not take the matter any further for the Respondent. This crucial aspect has been completely glossed over by the Appellate Court. 6. The Appellate Court has then adverted to the voters’ list Exh.41. Even the voters’ list does not indicate that the Petitioner was occupying room No.3 as such. The analogy for discarding evidence of Ration Card would apply on all fours even to the voters’ list. In other words, neither ration card nor the voters’ list can be the basis to accept the claim of the Respondent/Plaintiff that he was in fact occupying room No.3 situated in House No.123 at Mangalwar Peth, Pune. Admittedly, the Respondent/Plaintiff has not produced any agreement 6 or rent receipt which will support the claim of the Respondent that room No.3 was let out to the Respondent by the Petitioner/landlord as tenant. 7. Be that as it may, the Appellate Court has then adverted to the Municipal extracts Exh.54 and 55. In the first place, the Appellate Court has not dealt with the finding recorded by the trial Court in respect of these documents. The Appellate Court independently proceeded to hold that the said documents Exh.54 and 55 would indicate that the Respondent/Plaintiff was occupying room No.3 in the suit house. Indeed, the entries in Exh.54 and 55 would indicate that the Respondent/Plaintiff was occupying room No.3, but that was for the period after 1981-82. The trial Court in the first place has opined that those entries will be of no avail as they pertain to year after the Plaintiff had already deposed before the Court. Assuming that the said Exh.54 pertained to period of 1974-75; even so, the other reason recorded by the trial Court that the said entries cannot be accepted as it is-as the Plaintiff had failed to examine any witness from Municipal Corporation to establish the fact that he had taken inspection of the premises and only thereafter recorded the said entries. In other 7 words, contents of the Exh.54 and 55 have not been proved at all. The Appellate Court however, proceeded to hold that the said documents being public documents and trial Court having exhibited the said documents, it was not necessary to prove the contents thereof. That is complete misconception of the settled legal position. The settled legal position is that insofar as public documents are concerned, in view of the provisions of the Evidence Act, it only raises presumption about the existence of the said document. The party relying on such document nevertheless is required to prove the contents thereof. That is lacking in the present case. If that is so, evidence in the form of Exh. 54 and 55 which has overwhelmingly weighed with the Appellate Court will have to be discarded. That being the foundation of the reasoning adopted by the Appellate Court, the conclusion so reached by the Appellate Court will be untenable and manifestly wrong. 8. The Appellate Court has then adverted to the fact that the said documents Exh.54 an 55 mentions that the Respondent/Plaintiff was in possession of two rooms. The Appellate Court in absence of any evidence has opined on the basis of surmise and 8 conjuncture that it is common experience that one room consists of two khans and therefore it will have to be assumed that the Respondent/Plaintiff was in possession of room no.3. Such reasoning to say the least is manifestly wrong, if not perverse. 9. The Appellate Court has then adverted to the admission of the original defendant. The Appellate Court proceeded to hold that on reading the said evidence, it is amply clear that room Nos.3 and 4 with a door in between forms complete tenement. That assumption of the Appellate Court is manifestly wrong. The admission of the Defendant No.2 during cross-examination was to the effect that between the room Nos. 3 and 4, there is no complete partition wall but there is one door frame in this common wall. It is nowhere mentioned by the Defendant no.2 that the door frame was without door so as to assume that room No.3 and room No.4 were attached in such a way that they were accessible so as to conclude that the Respondent/Plaintiff was in possession of room No.3 as well. On the other hand, neither the trial Court nor the Appellate Court has adverted to the explicit case of the Defendant No.2 in the cross-examination with regard to the partition wall between room Nos.2 and 3. It is stated that between the room Nos. 2 9 and 3 there was partition wall, but there was door frame without door. If such was the statement in respect of the Room No.3 and room no.4, the inference drawn by the Appellate Court could have been said to be well founded. Suffice it to observe that there was no tangible ocular or documentary evidence on record so as to permit the Appellate Court to draw inference that the Respondent/Plaintiff was in possession of room No.3 as such. As a matter of fact, as is rightly observed by the trial Court, it was the obligation of the Plaintiff to prove his case that he was tenant in respect of room No.3. The respondent has relied on the documents which in no way support his case that he was in possession of room No.3 as tenant. Indeed, the Respondent/Plaintiff has relied on Municipal extract Exh.54 and 55, which for the reasons already recorded in the earlier part of this Judgment are of no avail to the Plaintiff. The Plaintiff cannot succeed on the basis of weakness in the evidence of the defendant or some stand taken by the defendant, assuming that the admission given by the defendant during the cross-examination was to support the view taken by the Appellate Court. Suffice it to observe that the Plaintiff has miserably failed to establish the fact that he was put in possession of room No.3 10 as tenant thereof and that premises were let out to him by the Petitioner/landlord as such. On this finding no other enquiry is necessary. The Petition will have to be allowed for the above reasons. 10. Accordingly, this Petition succeeds. Rule is made absolute. The impugned Judgment and Decree passed by the Appellate Court dated 7th March, 1992 in Regular Civil Appeal No.729 of 1989 is set aside ad instead the Judgment and Decree passed by the trial Court dated 28th April, 1989 in Regular Civil Suit No.788 of 1986 is restored, thereby the suit filed by the Respondent would stand dismissed with no order as to costs. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)