( 1 ) sa177.03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 177 OF 2003 WITH CIVIL APPLICATION NO. 15931 OF 2010 Sudhakar s/o. Amrutrao Deshpande .. Applicants Aged 60 years, Occ. Pensioner, R/o. Siddhanathpuri, Nanded, Taluka & District Nanded. Versus 1. T. Laxmanrao s/o. T. Yellappa, .. Respondents Died per heirs and legal representatives: (A) Kishan s/o. T. Laxmanrao, Aged 35 years, Occ. Not known, R/o. House No. 1-9-1074, Baba Nagar, Nanded-2. Taluka and District Nanded. (B) Papayya s/o. T. Laxmanrao, Age 27 years, Occ. Not known, R/o. As above. (C) Raju s/o. T. Laxmanrao, Age. 24 years, Occ. Business, R/o. As above. 2. Raju s/o. T. Laxmanrao, Aged 24 years, Occ. Business, R/o. As above. Mr. M.V. Deshpande, Advocate for the appellant. Mr. U.S. Malte, Advocate for the respondents. ( 2 ) sa177.03 CORAM : A.V. NIRGUDE, J. DATED : 10.08.2011 ORAL JUDGMENT :- 1. This appeal is filed against the judgment and order dated 7th February, 2000, passed by the learned Jt. District Judge, Nanded, in Regular Civil Appeal No. 186 of 1994. This appeal arose from the judgment and decree dated 5th September, 1994, passed by the learned III Jt. Civil Judge, Junior Division, Nanded, in a suit filed by the appellant. 2. The case of the appellant was as under :- 3. The appellant said that he rented out only two rooms to the original respondent No.1 for residence in 1985, by executing a rent note but subsequently the original respondent No.1 encroached over open area of the plot on which the rooms were situated and thereby caused loss to him. In addition, he also said that original respondent No.1 did not pay him rent as agreed between the parties for three years prior to filing of the suit. The suit was, therefore, filed for recovery of rent, recovery of damages for user of encroached area and for recovery of possession of the encroached area. 4. The learned Judge of the Trial Court accepted the case of the appellant and granted decree but the learned Judge of the first appeal Court held that the ( 3 ) sa177.03 suit deserved to be dismissed. The question between the parties at the first appeal stage was – Whether the appellant proved case of encroachment? The appellant placed reliance on the rent note, which was proved as Exh.56. On perusal of this rent note, it was found by the learned Judge of the first appeal Court that the appellant had let out an open plot of land admeasuring 40’ x 60’ along with a structure standing on it to the respondents. He rejected the case of the appellant that he had let out only two rooms and that the open court- yard of the plot was not let out. In view of this, the learned Judge of the First Appeal Court rejected the appellant’s case that there was encroachment on open plot of land. 5. On perusal of the judgment, I found that the reasons mentioned for coming to such conclusion was quite sound and cogent. In view of this, the claim of the appellant in respect of encroachment, damages and unauthorized user of encroached area would fail. 6. The second aspect of the appellant’s case is arrears of rent for the period between 1991 to 1993 (36 months). The learned Judge of the first appeal Court even rejected this case giving cogent reasons on facts. On perusal of these reasons, I find that I cannot even have second opinion about it. The reasons for coming to such conclusion are sound and I am not inclined to ( 4 ) sa177.03 disturb the same. 7. The third and a substantial question of law that arose between the parties is whether the learned Judge of the Lower Appellate Court erred in appreciating the evidence of the parties in respect of construction of additional room by the respondent/defendant. In this area, it appears that the finding recorded by the learned Judge of the first appeal Court is perverse. As mentioned above, the learned Judge of the first appeal Court accepted the case of the appellant/ plaintiff that there existed rent note and original respondent No.1 had put his signature on such rent note. He utilized the contents of the rent note to come to the conclusion that the appellant had let out the entire plot with two rooms standing on it as tenanted premises. This way, he accepted the case of the appellant that he had let out two habitable rooms to original respondent No.1. Respondent No.1 came with a case that soon after he took the premises on rent, he got a third room made by covering a roofless structure having four walls with a tin sheet roof and that he erected a tin shed an additional structure in front of the constructed two rooms. It is his case that this enhancement of the tenanted premises was permitted by the appellant. This case of the defendant cannot be believed in the light of the contents of the rent note. It is more probable that ( 5 ) sa177.03 after letting out the plot with two rooms, the original respondent No.1 unauthorizedly encroached the inhabitable area by first covering third room with roof and erecting tin shed in the open plot. In my view, the learned Judge of the first appeal Court fell in grave error in ignoring the contents of the rent note while appreciating this part of the case. I am, therefore, of the opinion that the appellant/plaintiff had successfully proved that the defendant enhanced habitable area of his tenanted premises. 8. The learned advocate appearing for the respondents asserted that this Court should not venture into giving this finding because such issue was not in existence between the parties. I am afraid, this argument cannot be accepted. The issue of encroachment was very much there between the parties and it is decided also. Out of such issue of encroachment the questions arose as to whether the appellant/plaintiff permitted enhancement of habitable area of the tenanted premises or whether it was original respondent No.1, who unauthorizedly increased it. I have given above finding on this issue on the basis evidence which is on record. This issue, in fact, is discussed by learned Judge of the first appeal Court and he held categorically that the case of the original respondent No.1 on this point should be accepted and believed. I am disturbing this finding because as ( 6 ) sa177.03 said above, this finding is one sided and is recorded without taking into account the contents of the rent note. The ignorance of the contents of the rent note makes this finding perverse and it deserves to be set aside. 9. In view of this, the appeal would partly succeed. The plaintiff is entitled to mesne profit for the user of enhanced habitable area of the tenanted premises for the period between 01.01.1991 to 31.12.1993 and from the date of the suit till date. 10. In view of disposal of the Second Appeal, Civil Application for stay does not survive and stands disposed of. [A.V. NIRGUDE, J.] snk/2011/AUG11/sa177.03