1 fa821.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.821 OF 1999 Siyaram Singh S/O Ramniranjan ...Appellant vs. Kamala Wd/o Chittaranjan Singh and others ...Respondents Ms Anita Agarwal for the appellant Mr.P.G.Lad and Shri A.R.Patil, A.G.P for Respondent no.6 CORAM : A.S.OKA,J. DATE : MARCH 10,2011 ORAL JUDGMENT: 1 The original second defendant has preferred this appeal for challenging the impugned decree dated 18 th January 1999. The first to fourth respondents are the legal representatives of the original plaintiff. The fifth respondent is the first defendant and the sixth respondent is the third defendant. For the sake of convenience, the parties are hereinafter referred with reference to their status in the original suit. 2 It must be stated here that the last page of the original plaint containing the prayers has been torn. However, the original plaint shows that only prayers were typed on the said page and the rest of the plaint is available. The trial Court has quoted the prayers made in the plaint in the Judgment. 3 The case made out by the original plaintiff in the plaint is that the first defendant is his younger brother and the second defendant is the son by his elder brother Ramniranjan Yadav. According to the plaintiff, the second 2 fa821.sxw defendant is claiming to be the constituted attorney of the first defendant. According to the case of plaintiff, the first defendant was residing at native place in Uttar Pradesh. It is stated that since 4th September 1978, the first defendant is residing at native place. It is the case of the plaintiff that the first defendant ordinarily stays at native place. In paragraph 2 of the plaint, it is asserted that the plaintiff had taken a shop premises situated at Devidas Kandalkar shed, opposite Building no. 83, Nehru Nagar, Kurla on 8th January 1968 from one Ram Naresh Yadav at Rs.6,000/- as consideration. In the year 1969, the first defendant came to Bombay from Uttar Pradesh and started residing along with the plaintiff. It is stated in paragraph 2 that a small portion of the shop premises was utilised for Pan shop and remaining portion was utilised for residential purpose. The second defendant-plaintiff came to Bombay for better prospects. It is alleged that the plaintiff was paying rent at the rate of Rs.60/- per month to the landlord Devidas Kandalkar. It is stated that the plaintiff continued to pay rent till December 1975. It is stated that when the census was carried out, the plaintiff was away at his native place as his brother was badly injured. It is stated that in his absence, the first defendant filled in form of census and that is how a passbook issued by the third defendant which is in possession of the first defendant. It is stated that the registration of the suit shop under the Bombay Shops and Establishment Act, 1948 in the name of the first defendant was done out of love and affection of the plaintiff for the first defendant. It is stated that the first defendant started taking undue advantage of the fact that his name was recorded in the census. It is alleged that on 11 th January 1999 the shop was demolished by the Municipal Corporation in road widening and the plaintiff re-constructed a shed in 3 fa821.sxw January 1977 and started business. It is stated that the second defendant acted in collusion with the first defendant against the interests of the plaintiff and fraudulent documents were prepared. Reliance is placed on the police complaint filed by the second defendant. In paragraph 5 of the plaint, it is stated that the suit is filed for declaration that he is the owner of the suit shop premises more particularly described in paragraph 5 of the plaint. Reliance is placed on the policy of third defendant of allotting plots of land of the size of 18 X 10 to the persons whose shops were demolished on 11 th January 1977. It is contended by the plaintiff that as the Hutment Occupier Card is in the name of the first defendant, the plot will be given to the first defendant. It is contended that the hutment Card contains the name of the plaintiff and his family members as occupiers. Therefore, it is contended that the plaintiff is entitled to allotment of the plot from the third defendant. The first prayer in the suit is for declaration that the plaintiff is the owner of the suit shop. The second prayer is for perpetual injunction from preventing the plaintiff s entry in the suit shop and the third prayer is for direction to the third defendant to allot alternate plot in the name of the plaintiff. 4. Various contentions were raised by the first and second defendants in their written statement. It was contended that they along with the plaintiff were members of the joint family. A family arrangement was pleaded under which it was agreed that the plaintiff should to run a shop at Chembur and should reside therein. It was agreed that the first defendant should run the suit shop at Kurla. The third defendant filed a written statement contending that a statutory notice was not served. It was contended that after demolition of the original shop 4 fa821.sxw premises in January 1977, alternate plot was allotted to the first defendant and the allotment was made in April 1980. The Trial Court held that the plaintiff was the original owner of the shop premises and the first and second defendants failed to prove that the first defendant alone was entitled to alternate site in lieu of the suit shop. The trial Court proceeded to pass a decree in terms of prayer clause (a) by granting declaration of ownership. The other relief granted by the trial Court is that the third defendant shall allot plot/patch to the legal representatives of the original plaintiff and put them in possession thereof. 5 The learned counsel for the appellant has taken the Court through the pleadings and notes of evidence and the documents on record. The learned counsel submitted that there is no documentary evidence adduced by the plaintiff to establish his title. The learned counsel submitted that the ownership of the plaintiff has not been established. The learned counsel submitted that for years together the appellant has been in possession of the said shop which is clear from the evidence of the second witness examined by the plaintiff. The learned counsel submitted that in absence of any evidence to prove the title, the suit ought to have failed. The learned counsel submitted that the evidence of the second witness examined by the plaintiff shows that for several years the first and second defendants were in possession of the shop premises. The learned counsel submitted that as ownership is not established, the suit should have been dismissed. 6 The first issue which arises for consideration is whether the plaintiff has established that he was the owner of the original shop. On this aspect, it will be 5 fa821.sxw necessary to advert to the plaint. In paragraph 2 of the plaint the plaintiff has asserted thus: 2 The plaintiff states that he had taken the premises of the shop at Devidas Kandalkar Shed, Opp. Building no.83, Nehru Nagar, Kurla (East), Bombay 400 024, on 8th January 1968 from one Ram Naresh Yadav for Rs.6000/- as consideration... 7 The widow of the original plaintiff stepped into witness box. About the title of her husband, she deposed thus : ...My husband acquired the suit shop from one Pandu Kandalkar sometime in 1968 for Rs.5000/-. Pandu was having business in Cutlery. My husband started Pan-bidi shop. There was a room behind the shop. We used to reside in the said room. Ram Naresh Yadav was the previous owner of this shop. My husband and Pandu acquired it from him. Initially, my husband was doing the business alone. The defendant no.1 came to Mumbai some time in 1972-73. He came and resided with us. He was then about 17 years old. The defendant no.1 requested my husband to allow him to stay with him because he was facing difficulty at out native place. He wanted to join my husband in his business. My husband then allowed him to come. The defendant no.1 then started sitting at the shop to relieve my husband for afternoon rest. He used to look after the business mostly during afternoon.... 6 fa821.sxw 8. It is pertinent to note that not a single document evidencing the aforesaid transaction was produced by the plaintiff. It is the contention raised by the plaintiff that he had lost the relevant documents. However, in the plaint, the specific case made out is that the plaintiff had taken the said shop premises from Ram Naresh Yadav for Rs.6000/-. In paragraph 3 of the plaint, he stated that he was paying rent to Devidas Kandalkar who was the landlord at the rate of Rs.60/- per month. As is clear from the examination-in-chief quoted above, in the evidence, initially a stand was taken that the plaintiff had taken the suit shop from Pandu Kandalkar. Thereafter, the widow of the plaintiff stated that Ram Naresh Yadav was the previous owner and the plaintiff and the said Pandu acquired the suit shop from him. It is pertinent to note that as the second witness, son of Pandurang by the name Devidas was examined by the plaintiff. His version of the transaction in paragraph 1 reads thus: 1...The shop was standing in my name. This was in 1968. Ramnaresh Yadav used to conduct business in our shop. Ramnaresh handed over the said business to Chittaranjan Singh. Ramnaresh was our tenant. Chittaranjan Singh started paying rent to us at the rate of Rs.60/- per month. He paid rent until 1975. After 1975 Pitch Cards were issued and so Chittaranjan Singh stopped paying rent to us. I do not recollect whether I or my father issued rent receipt to Chittaranjan Singh. Chittaranjan and his family members namely his wife and children were residing in the rear portion of the shop.... 7 fa821.sxw 9 The case made out in the evidence of said Devidas is inconsistent with the case of the widow of the plaintiff in her deposition that it was the plaintiff along with Pandurang who jointly acquired the shop premises from the said Ramnaresh Yadav. The witness Devidas Pandurang Kandalkar stated that the plaintiff paid rent at the rate of Rs.60/- per month till January 1975. The foundation of the suit was that the plaintiff was the owner of the suit shop. Thus, taking the evidence of both the witnesses examined by the legal representatives of the plaintiff as correct, It is impossible to hold that the plaintiff was the owner of the suit shop. Even the plea that he was the tenant paying rent of Rs.60/- per month in respect of the original shop is not at all substantiated by the production of the rent receipts. If the plaintiffs had lost original receipts, office copies thereof could have got produced from the witness Devidas. The witness stated that he did not recollect whether he or his father have issued rent receipts to the plaintiff. Thus, there is complete failure on the part of the plaintiff to establish the case of ownership. Even he could not establish the title as a tenant. 10 The suit is founded by the plaintiff on the title as owner of the original shop. The plaintiff has specifically pleaded that he is the owner of the original shop and accordingly, an issue was framed on title. As the plaintiff has miserably failed to prove his ownership, the plaintiff is not entitled to the consequential reliefs. Perusal of the finding on the first issue shows that this aspect has not been adverted by the trial Court. There is no specific finding recorded that the plaintiff is the owner. The learned Judge has merely observed that in view of lack of assertiveness on the part of the defendants, the 8 fa821.sxw plaintiff s case gets strengthened more. Hence, appeal must succeed only on the ground that the plaintiff failed to establish his title as owner. Therefore, plaintiff is not entitled to any relief after having failed to establish title as the owner. 11 Accordingly, I pass the following order : (i) Impugned Judgment and decree dated 14th January 1999 passed by the trial Court is quashed and set aside. (ii) The suit no.767 of 1979 stands dismissed. (iii)The appeal is allowed on the above terms. There will be no order as to costs. (iv) After a period of three months from today, it will be open for the appellant to apply for cancellation of bank guarantee. JUDGE