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 SECOND APPEAL NO.171 OF 1986 WITH WRIT PETITION NO.1489 OF 1986 WITH CIVIL APPLICATION NO.1492 OF 2004 IN SECOND APPEAL NO.171 OF 1986 Jitanlal Batausa Chavan, since deceased by his heirs:- 1. Krishnanath Gendalal Chavan, Transferred from Respondent No.4(B), (since deceased, through his legal heirs) (a) Mrs.Mandakini Krishnanath Chavan, Age:Adult, Occ: Household. (b) Mr.Yogesh Krishnath Chavan Age:Adult, Occ: Business. (c) Mr.Ganesh Krishnanath Chavan Age:Adult, Occ: Business. (d) Mrs.Archana Sachin Bhojgire Age:Adult, Occ: Business. (e) Mrs.Vandana Atul Bakhale. Age:Adult, Occ: Business. All residing at Flat No.26, Amit Heights, 15/4/1, Hingane Khurd, Pune 411 051. 2. Mrs.Mandakini Krishnanath Chavan, both Residing at 594, Gurwar Peth, Pune. 3. Mrs.Padma Shashidharan Bakhale, Residing at Jamkhindi. ..Appellants. V/s. 1. Vasant Rambhau Ladkat; 2. Shivram Rambhau Ladkat; 3. Shantabai w/o Vasantrao Ladkat; 4. Gendalal Batausa Chavan, died on 10th December 1983 by his heirs; 4A. Kamalabai Gendalal Chavan 4B. Transposed to Appellant 4C. Surendranath Gendalal Chavan (since deceased through his 2 legal heirs) 4C 1. Vijaya Surendranath Chavan. 4C 2. Prashant Chavan. 4C 3. Varsha Solanke. 4C 4. Priyanka Kabade. All residing at C/o Vijaya Surendranath Chavan R/o 21/3 Somawar Peth, Pune. 4D. Vishwanath Gendalal Chavan; 4E. Kashinath Genalal Chavan; 4F. Mohan Gendalal Chavan. 594, Guruwar Peth, Pune-42. ..Respondents. Mr.Nitin Deshpande for Appellants/Petitioners. Mr.V.B.Tapkir for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. DATE : MARCH 23, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 1. All the three proceedings are disposed together by this common Judgment. 2. This Second Appeal is filed by the Original Defendant No.2 questioning the Judgment and Decree passed by the Second Additional District Judge, Pune, dated 21st December, 1985, in Civil Appeal No.969 of 1982, which in turn has reversed the Judgment and Decree passed by the 4th Joint Civil Judge, Sr.Division, Pune in Special Civil Suit No.285 of 1971 dated 30th June, 1980. Resultantly, the Appellate Court decreed the suit for possession filed by the landlord. 3 3. On 16th October, 1971, the Respondent No.1/Plaintiff instituted suit for possession of the suit property and past and future mesne profit in the Court of 4th Joint Civil Judge, Sr.Division, Pune. At the same time, the Defendant Nos. 1 and 2 applied for fixation of standard rent of the suit property on 17th November, 1971 against the Plaintiff and Defendant Nos. 3 and 4. 4. Briefly stated, the case of the Plaintiff is that the suit property admeasuring 1600 sq.ft. with shed thereon was owned by him exclusively. The Defendants have no title to the suit property. The Defendant No.3 is his younger brother ad Defendant No.4 is the wife of Defendant No.3. It is the case of the Plaintiff that he gave the suit property on leave and licence basis to Defendant No.3 on 1st February, 1969 for a sum of Rs.400/- per month for a period of 11 months by executing deed Exh. 140 on terms and conditions stated therein. It is the Plaintiff’s case that one of the term of the said deed was that the Defendant No.3 was not to claim any tenancy right in the suit premises. Besides, the Plaintiff was at liberty to terminate the licence prematurely, if the said Defendant were to remain in 4 arrears for more than three months. The Plaintiff further asserts that the Defendant Nos. 1 and 2 on the one side and Defendant Nos. 3 and 4 on the other side entered into an agreement of partnership business in the name and style as M/s.Pune Textiles Manufacturing Power Loom Cloth. The period of partnership was stated to be two years. After signing partnership deed, however, the partnership business never started and the looms were never put into motion for manufacturing cloth. Therefore, the Defendant No.3 met the Plaintiff on 14th August, 1969 and terminated the licence contract and also handed over possession of the suit property to the Plaintiff. Although possession of the suit premises was handed over to the Plaintiff, power looms already installed in the premises, which were agreed to be removed by the Defendant No.3 at a convenient time, however, for some reason, the Defendant No.3 could not prevail upon the Defendant Nos. 1 and 2 to clear the said power looms. In this backdrop, the Plaintiff gave ultimatum in the first fortnight of April, 1971 and called upon the Defendants to pay damages at the rate of Rs.400/- per month from 1st September, 1969. The Defendant Nos. 1 and 2 through their advocate’s notice dated 26th April, 1971 however, asserted that they were the tenants in the 5 suit premises. Realising that the Defendants would not vacate the suit premises, the Plaintiff filed suit for possession and mesne profit against the Defendants. 5. The Defendant Nos. 3 and 4 filed their common Written Statement at Exh.55 to contest the suit. The Defendant Nos. 1 and 2 adopted the contents of their reply Exh.12 given to the temporary injunction application in the suit. Real contest was between the Plaintiff and the Defendant Nos.1 and 2. 6. According to the said Defendants, the suit property was managed by the Plaintiff and Defendant Nos. 3 and 4 together. That all of them together gave the suit property on rent to them on 18th December, 1968 after receiving Rs.1,000/- towards the rent. According to them, the relationship of landlord and tenant existed since before filing of the suit. The said Defendants also challenged the jurisdiction of the Civil Court to entertain the suit. According to the said Defendants, they had become deemed tenants as there was subsisting licence in their favour as on 1st February, 1973. It is asserted by the said Defendants that the Defendant Nos. 3 and 4 are in collusion with the Plaintiff. 6 They denied the genuineness of the licence deed dated 1st February, 1969 and contended that the same was not binding on them. According to them the said licence deed was a colourable document. 7. On the basis of the rival pleadings, the Trial Court framed as many as nine issues. The Trial Court answered the issues against the Plaintiff and thereby dismissed the suit for possession. By the same Judgment, the Trial Court disposed of the standard rent application, being Misc.Application No.549 of 1976, fixing standard rent of the suit premises at the rate of Rs.70/- per month. The abovesaid Judgment and decree of dismissing the suit was challenged by the Plaintiff by way of Civil Appeal No.969 of 1982. The Plaintiff also challenged the correctness of the conclusion reached on the standard rent application by the Trial Court by way of CRA No.80 of 1981. Once again both these proceedings were disposed off together by the District Court by the impugned Judgment and Decree dated 21st December, 1985. The Appeal Court has decreed the suit for possession and mesne profit in favour of the Plaintiff on the finding that there was no privity of contract between the Plaintiff and Defendant Nos. 1 and 2 and that the Defendant No.3 7 had no authority nor was he the agent of Plaintiff to induct the Defendant Nos. 1 and 2 in the suit premises in any capacity much less as tenants. As a result of the said conclusion, the Application for fixation of the standard rent filed by the Defendants came to be dismissed. 8. Against the Judgment and Decree for possession of the suit premises, the Defendant No.2 has filed the present Second Appeal. At the time of admission of this Second Appeal on 6th March, 1986, following two substantial questions of law were formulated. "(i) Whether Defendants are entitled to claim any interest in suit property ? (ii) Whether Defendants are guilty of fraud in setting up inconsistent cases ?" While dealing with the first question, I have no difficulty in reiterating the admitted and proved facts. It is not in dispute that the Plaintiff/Respondent No.1 is the exclusive owner of the suit premises. It is also not in dispute that there is no written agreement between the Plaintiff 8 and Defendant Nos. 1 and 2. Further, it is also not in dispute that the Defendant Nos. 1 and 2 are in possession of the suit premises. In the Written Statement filed to contest the suit for possession, the stand taken by the said Defendants is that the suit premises were taken by them from Defendants 3 and 4 on 18th December, 1968 for consideration to conduct loom business. Besides, an advance amount of Rs.1,000/- was paid towards rent. Even if this case is to be accepted as it is, it necessarily follows that there was no privity of contract between Plaintiff and Defendant Nos.1 and 2. On this finding, there can be no relationship of landlord and tenants between the Plaintiff and Defendant Nos.1 and 2. If it is so, the Defendant Nos.1 and 2 cannot resist action for possession, as they were claiming only through Defendant Nos. 3 and 4, if decree for eviction against Defendant Nos.3 and 4 were to prevail. On the other hand, the case of the Plaintiff was that the property was exclusively owned by him and had come to his share. The same was given on leave and license basis to Defendant No.3-his brother on terms and conditions stated in the agreement. Later on, Defendant No.3 surrendered the possession of the premises with assurance to remove the power looms installed therein in due course. The 9 Plaintiff has therefore, described the Defendant Nos. 1 and 2 as trespassers. Significantly, in the evidence, the stand of the Defendant Nos. 1 and 2 is that they had paid Rs.1,000/-, as advance towards rent to the Plaintiff. However, no such case has been pleaded in the Written Statement. Whereas, there is no evidence in relation to the case pleaded in the Written Statement. This is one factor, which has weighed with the Appellate Court in answering the point in issue. 9. The Appellate Court on analysing the pleadings and evidence on record has found that it is incomprehensible that the owner who has received back possession of the property from his brother would create tenancy in favour of the Defendant Nos. 1 and 2 in respect of the selfsame property. The Appellate Court has also analysed the partnership deed to hold that the terms stated herein would militate against the stand of Defendant Nos. 1 and 2 that they were inducted as tenants in the suit premises. The Appellate Court after considering the settled position that the burden is on the party, who claims tenancy right to prove that there is relationship between him and other party as tenants and landlord, has analysed the pleadings and evidence produced by 10 the parties and answered the issue on that basis. The Appellate Court has noted that the burden to prove the fact of relationship was on Defendant Nos. 1 and 2. The Appellate Court proceeded to analyse the documentary evidence in the shape of leave and licence agreement Exh.140 dated 1st February, 1969 executed in favour of the Defendant No.3; endorsement on the reverse of the said document dated 14th August, 1969 that the Defendant No.3 delivered possession of the suit property to the Plaintiff; partnership deed dated 1st May, 1969 Exh.145, execution whereof has been admitted by the Defendant No.1 in his evidence. Although the execution of the Partnership deed(Ex.145) has been admitted, curiously enough the Defendant No.1 declined to admit the contents thereof. Significantly, the said document came from the custody of the Defendant No.1. The Appellate Court found that if the contents of the said document Exh. 145 were to be considered, it clearly militates against the case made out by the Defendant Nos. 1 and 2 that tenancy right were created in their favour in respect of the suit premises. 10. The Appellate Court has also adverted to the Application Exh.149 addressed by the Plaintiff to the 11 Deputy Engineer, Maharashtra State Electricity Board, requesting the concerned officer to give electricity connection in the name of Defendant No.4 for running business in the suit premises. Reference is also made to Application Exh. 150 dated 10th March, 1969 addressed to the Chief Line Inspector, Pune Municipal Corporation sent by the Plaintiff, which states that the suit property was given to deceased Defendant No.1 for installation of power looms. Much emphasis was placed on this document by the Defendant Nos. 1 and 2. The Appellate Court has rightly noted that this document could be used only to establish the fact that the Defendant Nos. 1 and 2 came in possession of the suit property on or before 10th March, 1969, but would be of no use to infer that the relationship between the Plaintiff and Defendant Nos. 1 and 2 was one of landlord and tenant or that it came into existence in respect of the suit property. The Appellate Court has rightly noted that mere possession of the suit premises was not enough to create tenancy right in favour of the Defendant Nos. 1 and 2. The Appellate Court has then found that the Trial Court unjustly jumped to the conclusion about the relationship of landlord and tenant between the parties on the basis of the said Application Exh.150. The Appellate Court then found that no documentary 12 evidence relating to the creation of alleged tenancy in favour of the Defendant Nos.1 and 2 by the Plaintiff has been produced. According to the Defendant No.1, the contract of lease was oral. But at the same time, no tangible evidence has been produced to show that the said Defendant Nos. 1 and 2 in terms of the oral agreement paid amount to the Plaintiff towards rent in respect of the suit premises. The said Defendants however, conceded in their evidence that no payment was ever made to the Plaintiff towards monthly rent of Rs.70/-. Indeed, the Appellate Court has dealt with the case of the Defendant Nos.1 and 2 that they had paid sum of Rs.1,000/- to the Plaintiff towards rent. That plea has been examined on analysing the documentary evidence on which the said Defendants had relied, amongst others, credit entries showed in the books of account. The Appellate Court has found that words "Bhade Poti" written in the debit entry and words written in the credit entry were inserted afterwards, which could be discerned on perusal of the original document. The finding so recorded is unexceptionable. I have perused the said document. I find no hesitation in upholding that opinion of the Appellate Court. The Appellate Court on analysing all these aspects inevitably concluded that there was 13 no legal evidence to show that the Defendant Nos. 1 and 2 came in possession of the suit property on payment of rent to the Plaintiff and that relationship of landlord and tenant ever existed between the Plaintiff and the Defendant Nos. 1 and 2. Finding so reached by the Appellate Court is just and proper and founded on material on record. That is the only view possible in the fact situation of the present case. The Trial Court had completely misappreciated the evidence on record, which manifest error has been corrected by the Appellate Court. I am in agreement with the approach as well as the analysis done by the Appellate Court of the relevant evidence and therefore, have no hesitation in affirming the conclusion reached with regard to the status of the Defendant Nos. 1 and 2 in the suit premises. 11. As aforesaid, Defendant Nos. 1 and 2 have not produced any evidence to substantiate the case pleaded in the Written Statement, but produced evidence of case which was not pleaded. If the case as pleaded even if were to be accepted as it is, it would follow that there was no privity of contract between the Plaintiff and Defendant Nos.1 and 2, much less to create relationship between them of landlord 14 and tenants. The case pleaded, is that, the Defendant Nos. 1 and 2 were inducted by the Defendant No.3. The Defendant No.3 on the other hand, surrendered the suit premises, which were given to him by the Plaintiff on leave and licence basis on 14th August, 1969, which position has been recorded on the reverse side of Exh.140. Once the Defendant No.3 surrendered the suit premises to the Plaintiff, the question of Defendant Nos. 1 and 2 claiming to be legitimately in possession does not arise, much less, on account of tenancy or deemed tenancy. The question of deemed tenancy does not arise in this case, as there was no subsisting licence as on the relevant date. It is not open to the Defendant Nos. 1 and 2 to plead contrary to what has been stated in the document Exh. 145, namely, the partnership deed, which clearly records that the arrangement was not to create tenancy right in favour of the Defendant Nos.1 and 2. However, in the oral evidence although the execution of said document is admitted by the Defendant No.1 but curiously enough he refused to admit the contents thereof, although the said document came from the custody of Defendant No.1 himself. In other words, it was neither a case of assignment of a running business alongwith stock in trade and goodwill nor a case of subsisting licence 15 or of unlawful sub-letting prior to 1973. Thus understood, the status of Defendant Nos. 1 and 2 was that of trespassers, as contended by the Plaintiff and as has been rightly held by the Appellate Court in that behalf. 12. Realising this position, the Defendant Nos. 1 and 2 perhaps were advised to lead oral evidence to the effect that they had paid amount of Rs.1000/- as advance towards rent directly to the Plaintiff. This evidence in the shape of entries in the books of account has been rightly discarded by the Appellate Court on the finding that the same appears to be fabricated. Once again, even this view is unassailable, if we peruse the original Register containing the relevant debit and credit entry. In the circumstances, the said entry effected in the books of account would be of no avail. Significantly, it is admitted position that no amount was offered by the Defendant Nos. 1 and 2 to the Plaintiff at any time thereafter, much less towards rent in respect of suit premises, although the case of the Defendants is that the agreed monthly rent was Rs.70/-. No explanation has been offered as to why the said defendants made no attempt to offer any amount, much less, towards monthly rent inspite of 16 the legal notice and even till recording of evidence on 20th June, 1980. 13. To get over this position, Counsel for the Defendant Nos. 1 and 2 would contend that nonpayment of rent at best can be the basis to evict the tenant on the ground of arrears of rent but that cannot be used against the tenant to hold that there was no relationship of landlord and tenant between the parties. This argument clearly overlooks that this aspect has been independently examined by the Appellate Court. The Appellate Court has referred to the pleadings as well as documentary evidence on record which according to it by no standards can be used as legal evidence to conclude that the Defendant Nos. 1 and 2 came in possession of the suit property in the capacity of tenant and there existed relationship of landlord and tenants between the parties. Accordingly, substantial question of law No.1 will have to be answered against the Appellant/Defendant No.2, who has challenged the decree of eviction in respect of the suit premises. 14. That takes me to the substantial question of law No.2 formulated at the time of admission. In view of the above discussion, it is unnecessary to 17 elaborate upon this question. To sum up, Second Appeal filed by the Defendant No.2/Appellant deserves to be dismissed. 15. That takes me to the Civil Application No.1492 of 2004 filed by the Appellant for permission to carry out repairs of the suit property during the pendency of the Second Appeal. From the order sheet, it appears that this application has been dismissed in terms of order dated 17th April, 2008. In any case, in view of the dismissal of the Second Appeal, no further orders are necessary on this Application. 16. That takes me to Writ Petition No.1489 of 1986. This Writ Petition takes exception to the decision on the Application for fixation of standard rent filed by the Defendant Nos. 1 and 2 against the Plaintiff and Defendant Nos. 3 and 4. The Court below fixed the standard rent at the rate of Rs.70/- per month. The action of fixation of standard rent is founded on the existence of relationship of landlord and tenant between the parties. On the finding already recorded in the earlier part of this Judgment, the said proceedings will have to be terminated as there is no relationship between the Plaintiff and Defendant Nos.1 and 2 of landlord and 18 tenants. In absence of such relationship, the provisions of Rent Act for fixation of standard rent in respect of suit premises are unavailable. Accordingly, this Writ Petition would stand disposed of on the above basis and the standard rent application would therefore, stand dismissed. 17. Accordingly, I proceed to pass following operative order. (i) Second Appeal is dismissed with costs. (ii) Civil Application be treated as dismissed. (iii) Writ Petition is disposed of and the standard rent application being Misc. Application No.549 of 2006 be treated as dismissed with costs. . Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)