1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO.107/2011 MAHENDRAKUMAR GIRDHARILAL AGRAWAL ..VS.. PAVANKUMAR SHIVNARAYAN SARAIYA & ORS Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri B.B. Mehadia, advocate for appellant Shri M.R. Kalar, advocate for respondents CORAM : A.B. CHAUDHARI, J. DATED : 7 th October, 2011 . Decision on prayer clause 1(A). Prayer clause 1(A) reads thus: “Quash and set aside the Order below Exh 26 dated 7.12.2010 passed by the learned Principal District Judge, Wardha below Exh.26 at Annexure:B in Regular Civil Appeal No.178/2006 and allow the application below Exh.26.” In support of the above amended prayer Mr. Mehadia, learned counsel for appellant vehementally argued that the lower appellate court committed an error in not allowing the application exhibit 26 for amendment by which the appellant wanted to amend the written statement for incorporating a ground that the suit itself was barred by limitation. The reason given by lower appellate court in rejecting the application exhibit 26 is 2 perverse and illegal and cannot be allowed to stand. He further argued that the said amendment could not be made in the trial court because the plaintiff himself was responsible in not disclosing the proper cause of action for the purpose of counting of limitation and as a matter of fact it was a duty of the lower appellate court under section 3 of the Limitation Act to frame said issue and decide the same on the ground of limitation. The amendment was insisted because of letter exhibit 94 dated 30.3.1979 from which it was clear that the plaintiff was aware about the possession of the appellant since 1979. Per contra, learned counsel for respondent Mr. Kalar vehementally opposed the said prayer to the second appeal and argued that the application for amendment was filed merely to prolong the proceedings and as it is the appellant who has been prolonging the proceedings since 2003 and hence the prayer deserves to be rejected. I have gone through the impugned order below exhibit 26. Having heard the learned counsel for the rival parties, I find that the appellant was not at all 3 prohibited from raising plea of limitation at the first blush or at a later stage by amendment in the written statement itself. The reason furnished before me that it was the plaintiff who was responsible for not making the defendant known about the possession, is equally wrong. It is not for the plaintiff to make the defendant aware about his defence of limitation. To say that the plaintiff had disclosed about the knowledge of the possession of the defendant in the suit premises from the year 1979, is another wrong statement made by the appellant. Appellant did know his case and therefore, plea was required to be set up by him at appropriate stage in the trial court as the issue of limitation is also a mixed question of law and fact. That apart the very foundation that the plaintiff was knowing or had admitted that appellant was in possession since 30th March 1979 is factually incorrect. There is no such admission as stated by the learned counsel for the appellant. I am satisfied that the amendment application exhibit 26 that was made by the appellant in the appellate court was only with a view to prolong the litigation with a view to remain in occupation of the suit 4 property when the appellant has been found to be trespasser by the trial court. I therefore, do not find any substance in the aforesaid prayer, hence prayer clause 1(A) to the memo of appeal is dismissed. SECOND APPEAL NO.107/2011 This appeal is directed against the judgment and decree passed by the Principal District Judge, Wardha in Regular Civil Appeal No.178/2006 confirming the judgment and decree dated 29.8.2006 passed by the Joint Civil Judge, Junior Division Arvi decreeing the suit of the plaintiff / respondent. Mr. Mehadia learned counsel for the appellant in support of the appeal made following submissions: 1] The suit filed by the respondent/ plaintiff was barred by limitation in view of article 65 of the Limitation Act as the suit was filed on the basis of title and not dispossession and the respondent/ plaintiff knew that the appellant was in possession since 30th March 1979 which is evident from possession receipt exhibit 94. 2] The courts below ought to have 5 drawn adverse inference against the respondent/ plaintiff because he did not examine Madanlal who admittedly was collecting rent form the tenants. The appellant established in his evidence that Madanlal was collecting rent on behalf of the respondent/ plaintiff, then the burden shifted on respondent/plaintiff. It was responsibility of the plaintiff/ respondent to examine Madanlal and he having not done so, adverse inference ought to have been drawn against the respondent/ plaintiff. 3] The courts below did not peruse the receipts right from 1979, clearly indicated possession of the appellant as a tenant. The appellant being a tenant of respondent/ landlord the burden shifted on the plaintiff to show that the appellant was not the tenant. The Tax receipts filed on record clearly raise presumption in favour of appellant/ tenant, but the courts below have not given any importance to the same. He therefore submits that the substantial questions of law arise in this appeal for consideration before this court. He relied on the following judgments: 6 1] AIR 1955 VP 28 2] AIR 1955 TC 188 3] AIR 2003 SC 4548 4] AIR 1940 Rangoon 207 5] AIR 1959 SC 798 6] AIR 1942 PATNA 188 7] AIR 1939 NAGPUR 145 8] AIR 1945 CALCUTTA 477 9] AIR 1999 SC 1341 10] AIR 1968 SC 1413 11] AIR 1953 SC 225 12] AIR 1917 PRIVY COUNCIL 6 13] AIR 1949 CALCUTTA 457 14] 1988 A.I.H.C. 3751 15] AIR 2002 SC 504 Per contra, Mr. Kalar learned counsel for respondent submits that concurrent findings of facts are recorded by courts below on all the issues which arise in the present matter. This court cannot re-appreciate the evidence again and in absence of any substantial question of law, the appeal deserves to be summarily dismissed with costs. The appellant is a rank-trespasser and has no material whatsoever to show that he was at any point of time inducted as a tenant. On the contrary one Shankarlal Agrawal was the tenant of respondent/ plaintiff and all the receipts shown of alleged rent are in the name of Shankarlal Agrawal and not in the name of the plaintiff/landlord. To sum up according to him, so called rent receipts 7 or tax receipts shown by the appellant, have no concern with the plaintiff whatsoever and the rent receipts thus show that the appellant had paid the rent to Shankarlal. All that was totally unauthroised without the knowledge and consent of the respondent/ landlord and at any rate in absence of creation of tenancy in accordance with law, merely because the appellant was inducted in the suit property by the tenant Shankarlal or his son Jitendra. The appellant cannot become the tenant. Hence the appeal be dismissed with costs. In support of his submissions he relied on the judgment reported in 1970 Mh.L.J.748. I have heard learned counsel for the parties. I have gone through the findings recorded by the courts below. I do not find any error in the findings of facts recorded by the courts below on the questions raised. As to exhibit 94 possession - letter dated 30th March 1979 which is a foundation of the submission made by Mr. Mehadia learned counsel for the appellant, from perusal of the findings I find that one Shankarlal Agrawal was inducted as tenant by plaintiff/ landlord. Jitendra s/o 8 Shankarlal Agrawal unauthorisedly inducted the appellant in the suit shop on 30th March 1979 and also issued a possession receipt exhibit 94 and thereafter the appellant started paying rent to Shankarlal. Careful perusal of receipt exhibit 94 nowhere shows any consent express or implied by the respondent/ landlord or the knowledge of the said act of Jitendra in delivering possession to appellant. There is no iota evidence on record to show the said fact. The attempt of the learned counsel for the appellant to show that the plaintiff admitted the knowledge of exhibit 94 is clearly without any basis as there is nothing in the evidence to show accordingly. There is anything on record to show that plaintiff was aware about possession of appellant from 30th March 1979. That being so, the very foundation of the submission made on the basis of exhibit 94 is misconceived. This being so the contention that the suit was barred by limitation within the meaning of article 65 of the Limitation Act or that adverse possession of the appellant should have been upheld is wholly misplaced. The next submission made by learned counsel for the appellant that 9 adverse inference should be drawn because plaintiff did not examine Madanlal who was collecting the rent, is equally misconceived inasmuch as there is no evidence on record to show that Madanlal used to collect any rent from the appellant himself that too without any authority. As earlier discussed the appellant was unauthorisely inducted into the suit shop because Shankarlal was not keeping well to run the business, but then that was all done on his own without consent of landlord/ plaintiff. The appellant therefore cannot be given premium over his illegal act or occupation of premises of the owner of his own and then go on paying the rent to Shankarlal. It is not his case that appellant has a single document for creation of tenancy with the plaintiff. Therefore, mere long possession of the appellant does not make any sense. The third submission made by learned counsel for the appellant that because he had paid municipal taxes in respect of the suit shop he became a tenant is liable to be rejected. As already discussed, establishment of relationship between landlord and tenant was to depend upon the agreement of 10 tenancy, oral or written and merely because the appellant was inducted in the premises, his status as a trespasser does not change, even if the taxes were paid. Mere payment of taxes cannot confer any legal right of tenancy. At any rate the findings being findings of facts recorded by the courts below, this court is not inclined to substitute its view. No substantial question of law is involved. The Second Appeal No.107/2011 is dismissed with costs quantified at Rs.10,000/- payable to the respondent/ landlord within a period of four weeks from today. The learned counsel for the appellant prays for time to vacate the premises in question. Upon furnishing usual undertaking and affidavit, the appellant is granted four months time to vacate the premises. JUDGE SMP