1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL REVISION APPLICATION NO. 67 OF 2001 CIVIL REVISION APPLICATION NO. 67 OF 2001 CIVIL REVISION APPLICATION NO. 67 OF 2001 1. Smt. Revaben Ajay Dedhia ) 2. Ajay Korshi Dedhia ) Both of Mumbai Indian ) Inhabitants, residing at ) 6, Surbhi, Goraswadi, ) Malad (est), Mumbai 400 064. )..Applicants (Org.Defendants Versus Harshad Jethalal Shah ) an Adult, Indian Inhabitant, ) residing at B/1, Shradha Apartment, ) Shakti Nagar, Off Marve Road, ) Malad (West), Mumbai 400 064. )..Respondent (Org.Plaintiff) Mr.P.M.Shah, Advocate, for the applicants. Mr.I.G.Damani,Advocate, for the respondent - Absent. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. 2 DATE: 14th February,2008. DATE: 14th February,2008. DATE: 14th February,2008. JUDGMENT JUDGMENT JUDGMENT 1. This Revision Application is preferred against the decree for possession passed under Section 6 of the Specific Relief Act in favour of the plaintiff and against the defendants. 2. To state in brief, the dispute is pertaining the suit premises i.e. shop Nos. 4 and 6, which are part of Shobha Godown, Amir Ali Merchant Chawl, Mantri Wadi, S.V. Road, Malad (West), Mumbai. The plaintiff filed the suit under Section 6 of the Specific Relief Act contending that on 3rd April, 1996, he had taken the suit shops on rent from the landlord Amir Ali Merchant and he had kept in the shops various articles such as auto-spare parts, tyrs, oil drums etc. which were required for the purpose of his business of transporter. He had also applied for a telephone connection and opened the bank account etc. Sometime in the last week of May, 1996, he had been to Hyderabad and then to Kutchh in Gujarat. He came back to Mumbai in the second week of June, 1996 and was shocked to notice that the suit shops were broken open and the goods lying therein 3 were stolen away. On enquiry, he came to know that defendants Nos. 1 and 2 had committed criminal trespass in the suit shops. He also contended that in order to circumvent their illegal acts of criminal trespass, house-breaking and theft, they had filed Special Civil Suit No.2779 of 1996 against Vasantbhai Dedhia, the brother of defendant No.2. The plaintiff took out a Chamber Summons to implead him as a party, but that Chamber Summons was rejected. The plaintiff also lodged a report with the police on 24.6.1996. According to the plaintiff, defendant No.1, who is the wife of defendant No.2, in collusion and connivance with one Mr. Anil Chheda, had filed the suit and obtained consent decree from the Small Cause Court and had thus committed fraud. It is contended that the defendants had taken illegal possession of the suit premises behind the back of the plaintiff without following due process of law and that too without any right or interest in the said property. The plaintiff filed the suit for possession of the suit property by removing the defendants from the same. 3. The defendants contested the suit by filing the written statement and denied that the plaintiff was ever in possession of the suit premises as a tenant or otherwise. According to them, defendant No.2 had opened business of books and stationery in partnership with 4 Hirji Mavji Gala in the name of "Ajanta Emporium" sometime in 1956 in the premises situated near Shankar Temple, S.V. Road, Malad (East). The said Hirji Gala retired from the partnership in or about the month of October, 1958 and thereafter defendant No.2 was carrying on business of Ajanta Emporium as the sole proprietor till 1963. In 1963, to settle his younger brother Devchand Dedhia also in business, defendant No.2 accepted and admitted Devchand Dedhia in the business of Ajanta Emporium. Later on, defendant No.2, in order to settle his another brother Vasant Dedhia in business, started business of printers in the name and style of "Ajanta Printers" at Bliss Compound, Nevatia Road, Malad (West) sometime in 1966. One Kanubhai Chokshi was also a partner in the said business. In fact, entire finances were provided by defendant No.2. In 1968, the suit shop No.4 was acquired for the business of Ajanta Printers. Though defendant no.2 wanted to take the suit premises in the name of M/s. Ajanta Printers, the landlord insisted to issue rent receipts in the individual name and therefore, with consent of defendant no.2, the rent receipts were issued in the name of his younger brother, Vasant Dedhia. In 1970, his another brother Samir and his son Shilpan were also admitted in the partnership of M/s. Ajanta Printers. In 1974, the suit shop No.6 was also acquired by the said partnership 5 firm, but the rent receipts were issued in the name of Vasant Dedhia. The rent of both the shops was paid from the above firm. In 1974, Kanubhai Chokshi retired from the firm and defendant No.1, who is wife of defendant No.2 and Korshi Hirji Dedhia, father of defendant No.2, were admitted to the partnership with effect from 28.1.1974. According to the defendants, because the business of Ajanta Printers was not sufficient, in or about the year 1972, Vasant Dedhia shifted to Jetpur, District Rajkot, Gujarat and started his business in the name of "Ajanta Arts" . Vasant Dedhia continued to receive his 20% share in the profits and loss of the said Ajanta Printers till 1977, though he was not attending the business of the firm since 1970. In 1976, a new firm in the name of "Ajanta Dyeing and Printing Works" was constituted and business was commenced at Jetpur. In view of this, the firm of M/s. Ajanta Printers was dissolved and the business was discontinued. By letter dated 10.4.1977, Vasant Dedhia confirmed that all the accounts of the said firm were settled and the defendant No.1 alone had exclusive right of tenancy over the suit shop Nos. 4 and 6. He also consented for transfer of rent receipts in the name of defendant No.2, but the landlord did not make any change. Anyhow, since April 1977, Vasant Dedhia had no right or interest in the suit premises and defendant 6 no.1 alone was in occupation of the same. After 1977, the suit shop was used for the purpose of keeping goods and material of M/s. Ajanta Emporium, which was started by defendant No.2 in 1963. The rent of the suit premises was paid from 1977 to 1993 from the accounts of the firm of M/s. Ajanta Emporium. The rent was paid to Sultanali Merchant,the then landlord till December 1991 and thereafter to Amir Ali Merchant from January 1992 till December 1993. The rent was being collected by rent collector on behalf of Amir Ali Merchant. 4. It is further contended by the defendants that from January 1994 to February, 1995, the defendants had allowed one Vipul Kantilal Ranbhia, the former employee of M/s. Ajanta Emporium, to run his own business in the suit shops. After he vacated, on 15.3.1995, the suit shops were given to Anil Anandji Chheda under an agreement of leave and license. However, as said Anil Chheda committed breach of the terms and conditions of the agreement, defendant no.1 filed L.E.Suit No.84/91 of 1995 in the Court of Small Causes at Bandra, Mumbai, for possession. Said Anil Chheda appeared and consent terms were filed on 20.12.1995 wherein he agreed to vacate the premises by 31.12.1995. However, as he did not vacate the premises, the defendants got the decree of possession executed through the bailiff of the Court and 7 took possession on 25.4.1996. Thus, from 25.4.1996, the defendants are in possession of the suit premises again. It is contended that several disputes had occurred between the defendants and Vasant Dedhia in respect of business in Gujarat. Suits were filed in the Court at Gondal, Gujarat. Because of said litigation, Vasant Dedhia had threatened defendant NO.1 on telephone on 19.5.1996 that if they would not settle the matter, he would take forcible possession of the suit premises because the rent receipts were still in his name. The defendants therefore, lodged a complaint with Malad Police Station on 21.5.1996 and N.C. No.2031 of 1996 was registered at Malad Police Station. In view of these threats, defendant NO.1 had filed Suit No.2779 of 1996 against Vasant Dedhia and obtained ad-interim injunction against him. It is contended that the plaintiff filed this suit against the defendants under section 6 of the Specific Relief Act in collusion with Vasant Dedhia in view of the temporary injunction granted against Vasant in Suit No.2779 of 1996. It is contended that the suit of the plaintiff is totally false. He was never in possession nor he has any interest in the property and therefore the suit is liable to be dismissed. Several other technical objections as to the maintainability of the suit were taken, but we are not concerned with the same. 8 5. Several issues were framed. The plaintiff examined himself and some witnesses in support of his claim. The defendants also examined certain witnesses. Some documents were placed on record. After hearing the parties, the learned trial Court decreed the suit upholding the plea of the plaintiff and directed the defendants to remove themselves from the suit premises and to restore possession thereof to the plaintiff. The said judgment and order are challenged in the present Revisiion Application by original defendants. 6. Heard learned Counsel for the revision applicants-defendants. None appeared for the plaintiff-respondent at the time of final hearing. Perused the oral and documentary evidence led by the parties. 7. The plaintiff examined himself as P.W.1 and the landlord P.W.2 Amir Ali Merchant and P.W.3 Mangilal Chunilal Parmar, who is a neighbour in support of his claim. On behalf of the defendants, defendant No.2, Ajay Dedhia, D.W.2 Mansukh Gala and DW-3 Sham Bihari were examined. Amir Ali deposed that on 3.4.1996, Vasant Dedhia had come to him along with the plaintiff and told him that he wanted to surrender his tenancy in 9 respect of the suit shops and the plaintiff are interested in taking the same. Accordingly, Vasant Dedhia surrendered his tenancy and the plaintiff was accepted as a new tenant. Immediately an employee of P.W.2 Amir Ali went to the suit premises along with the plaintiff, P.W.3 Mangilal and Vasant Dedhia for giving possession of the suit premises to the plaintiff. According to him, the keys of the suit premises were given to plaintiff. It is material to note that P.W.2 Amir Ali himself did not go to the shop and did not give physical possession of the shop to the plaintiff. As per evidence of plaintiff, he had come to know that Vasant Dedhia was going to surrender his tenancy in respect of the suit premises and therefore, he went to the landlord and offered to take premises on rent and the landlord agreed and an agreement was entered into in the presence of Vasant Dedhia and P.W.3 Mangilal and on the same day he was given possession. Mangilal supported him. According to Mangilal because the shop was lying vacant for a long time, he had kept some of his own articles in the shop and they were lying in the shop. As per the evidence of these witnesses about 15 - 20 days after the lease agreement dated 3.4.96, the plaintiff had brought and stored his own articles which were related to his transport business. These articles included the tyres, oil drums, etc. On the other hand, 10 D.W.2 Mansukh Gala, who is carrying on business in one of the shops in the same Chawl of Amir Ali Merchant, supported the claim of the defendants. 8. Vasant Dedhia was not examined in the suit. However, admittedly, the defendant No.1 had filed Suit No.2779 of 1996 which was initially registered as S.C.Suit Stamp No.3017 of 1996 against Vasant Dedhia on 22.5.1996. In the said suit, Notice of Motion No.2660 of 1996 was taken out by the present defendant No.1 who was plaintiff in that suit. Vasant Dedhia had also filed an affidavit in reply to the said Notice of Motion on 15.7.96. His affidavit was taken on record in the present suit. Some of the contents of his affidavit are relevant and will be referred to in the present matter. In the affidavit he had admitted the story of business of the family in the name of Ajanta Printers. He also contended that since 1981, litigation is going on in the Gondal Court, Dist. Rajkot (Gujarat). He also contended that Ajay Dedhia had obtained his signature on some blank papers and the document dated 10.4.1977 was created. That document pertains to confirmation by Vasant Dedhia that he had no interest in the suit premises when he had settled his accounts in the firm and that present applicant No.1 was in exclusive possession of the suit shop. It appears that from 1977 11 or before that Vasant Dedhia was not in possession and the suit shops were being used by the defendants. It appears that even though the rent receipts were issued in the name of Vasant Dedhia, the business of the partnership was being carried on in the suit premises since beginning and after Vasant Dedhia retired from the partnership firm, the defendants continued to be in possession. It appears that they were using the suit shops as a godown for Ajanta Emporium. 9. The learned trial Court however, accepted the plea of the plaintiff and observed that the defendants have failed to establish that the possession of Vasant Dedhia in respect of the suit premises just prior to 3.4.96 was an impossibility. It indicates that the learned trial Court had put burden of proof that Vasant Dedhia was not in possession on 3.4.96 on the defendants. In fact, taking into consideration the history of business run by these persons, it was quite probable that possession of the suit premises was with the defendants who were carrying on business of Ajanta Emporium and that Vasant Dedhia could not be in possession of the same, particularly because since prior to 1977, he was carrying on his independent business at Jetpur, Rajkot District. 12 10. In fact, in the suit filed under Section 6 of the Specific Relief Act, it is for the plaintiff to prove that he was in possession of the premises on the particular date or during particular period, when he was unlawfully and without due process of law, dispossessed by the defendants. If the evidence on record is carefully scrutinised, it appears that the plaintiff was not at all certain when he was dispossessed from the suit premises. As per his pleadings,in the last week of May, 1996, he had left Mumbai to go to Hyderabad and from there to Kutch and he had come back in the second week of June, 1996 and he was shocked to see that the suit premises were broken open and the defendants had committed trespass on the same. Thus, he tried to plead that during absence from his absence from Mumbai from the last week of May till arrival in the second week of June, he was dispossessed. In his evidence, he deposed that he had left Mumbai on 31.5.1996. At one place, he deposed that he had come back to Mumbai on 23.6.1996 and on the next day, i.e. on 24.6.1996, he lodged a report with the police. In the cross-examination, he stated that he had, in fact,come to Mumbai on 14th or 15th June, 1996. At that time only he had come know about his dispossession and according to him, he had reported the matter to the police but the report was not recorded. Thereafter, he was out of Mumbai and when he 13 came back, he lodged the report. The plaintiff nowhere deposed that he was dispossessed from the suit shops prior to 31.5.1996 when he had left Mumbai to go to Hyderabad. 11. The evidence of D.W.1 Ajay Dedhia, who is supported by D.W.2 Mansukh, reveals that in 1994, the defendants had given the suit premises to Vipul for carrying on business of screen printing and after he vacated the same in February,1995, Anil Chheda was inducted under an agreement of leave and license on 15.3.95. The record reveals that defendant No.1 filed L.E. Suit No.84/91 of 1995 against Anil Chheda for getting back possession. It appears that within 2 days i.e.on 20.12.95, Anil Chheda appeared and both the parties filed consent terms and Anil Chheda agreed to vacate the premises by 31.12.95. According to the defendants, he did not vacate the premises and therefore, defendant NO.1, decree holder in that matter, executed the decree and got back possession of the suit shops through the the Court bailiff on 25.4.96. In his affidavit dated 15.7.96 in Notice of Motion No.2660 of 1996, Vasant Dedhia had admitted that bailiff of the Small Causes Court had removed the lock and put the present defendants in possession of the suit shops on 25.4.96. In view of this, even if for a moment it is 14 believed that the plaintiff was put in possession of the suit shops on 3.4.96, it must be held that he was dispossessed from the premises on 25.4.96 when the decree in Suit No.84/91 of 1995 against Anil Chheda was executed. The learned trial Court observed that the decree in the said suit appears to be collusive. In fact, taking into consideration the overall picture, it is difficult to come to such a conclusion. It is true that almost immediately after filing of the suit, Anil Chheda had appeared and filed the consent terms and agreed to vacate the premises by 31.12.95. However, as he did not vacate inspite of the consent terms, the decree was executed and this fact is proved not only by D.W.1 Ajay Dedhia and D.W.2 Mansukh, but it is also admitted by Vasant Dedhia in his affidavit. This fact is also clear from the record of the execution proceedings. Even the learned trial Court finally came to the conclusion that the plaintiff was dispossessed on 25.4.96 due to execution of the decree. Thus, it appears that, if at all, the plaintiff was first dispossessed on 25.4.96. However, if the affidavit of Vasant Dedhia is further perused, he had stated that after execution of the said decree, the present plaintiff had broken open the lock of the defendants and had entered the said shop, but during the midnight of 22.5.96, the defendants had broken the lock of the 15 plaintiff and had forcibly entered the suit premises. It means according to him, on 22.5.96, the plaintiff was dispossessed from the suit premises second time. Incidentally, the plaintiff did not plead nor deposed that he was dispossessed either on 25.4.96 or on 22.5.96. According to him, he was in possession on 31.5.96 when he left Mumbai. Thus, three different dates have come on record about dispossession of the plaintiff from the suit premises. In view of this, the plaintiff could not prove with certainty whether he was dispossessed on 25.4.96 or on 22.5.96 or after 31.5.96. If he was, in fact, dispossessed second time on 22.5.96. There was no reason why the plaintiff did not take any action against defendants immediately, particularly because even according to his own admission, he was in Mumbai upto 31.5.1996. This conduct creates serious doubt about the claim of the plaintiff that he was in possession on 3.4.96 and was dispossessed sometime after 31.5.96. 12. It is also material to note that in the Notice of Motion No.2660 of 1996, filed by Vasant Dedhia, the City Civil Court had granted ad-interim injunction against him on 22.5.96 and incidentally it is the same day when, according to Vasant Dedhia, the plaintiff was dispossessed second time. It means from 22.5.96, the 16 defendants were in possession of the premises and therefore, it was impossible to dispossess the plaintiff from the suit shops after 31.5.96. 13. I have carefully perused the inventory of the property prepared by the bailiff of the Small Cause Court while executing the decree in Suit No.84/91 of 1995 against Anil Chheda. Total 74 articles, most of which were broken, furniture items, old electrical items and 20 plaster of Parris half piece statues. According to P.W.3 Mangilal, these articles belonged to him and he had kept there with the consent of Vasant Dedhia. On the basis of this inventory, the learned trial Court came to the conclusion that the possession was with Vasant Dedhia and not with others. Mansukh is a neighbour and for a long time the suit premises were not being used by the defendants and therefore, if Mangilal had kept some articles there that would not indicate that defendants were not in possession. It is material to note that according to the plaintiff and P.W.3 Mangilal, the plaintiff had kept certain truck tyres, old drums, scrap material and such other articles connected with his transport business in the suit shop about 15 to 20 days after taking the same on rent 3.4.96. If it was true, these articles must have been found in the suit shops by the bailiff at the time of 17 execution of the decree. But none of these articles of the plaintiff were found in the suit premises. As the plaintiff did not get any support from the contents of the report prepared by the bailiff, he pleaded that the defendants had committed trespass. The premises were locked and the lock was opened not by the defendants privately, but by the bailiff. There is nothing to show that the defendants had opened the lock and removed the articles of the plaintiff prior to 25.4.1996. In view of this, it is difficult to accept the plea of the plaintiff that his articles were removed by the defendants. If in fact, they were removed on or about 25.4.1996, he was expected to lodge a report with the police immediately, which he did not. 14. The plaintiff produced certain record about taking telephone connection, etc. in the suit premises, but all that record was created after June, 1996 when he was, admittedly, not in possession of the premises. Therefore, the record has no relevance and in fact it indicates that the plaintiff had tried to create false evidence to support his claim. The learned trial Court noted that the defendants did not have rent receipts in respect of the suit premises after December, 1993 whereas Vasant Dedhia had. In fact, till 1993, the defendants had such receipts which provide corroboration 18 about their continuous possession even after dissolution of the partnership in 1977. D.W.1 Ajay explained that after December, 1993, rent collector no behalf of the landlord Amir Ali Merchant had not come and therefore receipts were not issued. The learned trial Court also noted that no specific procedure was followed in respect of acceptance of rent or issuance of rent receipts by the landlord. If it is so, it was not impossible for him to issue such receipts to Vasant Dedhia, if in collusion between the plaintiff and Vasant Dedhia, an attempt was made to take possession of the premises by filing the suit. 15. Taking into consideration the overall evidence and the circumstances noted above, it must be held that the plaintiff had utterly failed to prove that he was put in possession of the suit premises as a tenant on 3.4.1996 and was dispossessed from the same sometime after 31.5.1996 and before his arrival in Mumbai on 2.6.1996. In fact, taking into consideration the evidence and the circumstances, it is impossible to come to the conclusion that the plaintiff was in possession and he was illegally dispossessed by the defendants. Therefore, I have no hesitation to hold that the learned trial Court committed serious error in coming to the conclusion in favour of the plaintiff. As such, the 19 judgment and decree passed by the trial Court are liable to be set aside. 16. In the result, the Revision Application is allowed. The said Judgment and decree are hereby set aside. (J (J (J.H.BHATIA,J.)