( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 168 OF 1993 Thakurdas s/o Shravan Patil, R/o Bhusaval, Jamner Road in front of Surana Oil Mills, Bhusaval, Taluka Bhusaval, District Jalgaon. APPELLANT VERSUS 1. Pralhad s/o Ananda Mahajan, R/o Bhusaval, Tq. Bhusaval, District Jalgaon. 2. Gajanan s/o Tikaram Mahajan, R/o Yawal, Taluka Yawal, District Jalgaon. RESPONDENTS ..... Mr. P.N. Kutty, advocate for the appellant. Mr. S.S. Kulkarni, advocate holding for Mr. V.T. Choudhari, advocate for respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 2nd December, 2009] ORAL JUDGEMENT : 1. Leave granted to rectify the name of the appellant as “Thakurdas Shravan Patil”. ( 2 ) 2. Challenge in this appeal is to judgement rendered by learned Additional District Judge, Jalgaon, in Civil Appeal No. 15/1988 whereby judgement of the trial Court in suit (R.C.S. No. 55/1982) came to be reversed. The trial Court dismissed the suit for recovery of possession. The first Appellate Court, however, decreed the suit vide the impugned judgement. 3. Suit premises are part of house property bearing Municipal No. 5704 (old)/470 (new), situated at Bhusaval. It comprises of two rooms of 10 feet x 10 feet and 10 feet x 7 feet area. 4. Indisputably, the house property was previously owned by respondent No. 1 – Pralhad. Respondent No. 2 Gajanan is the purchaser thereof. Both of them jointly sued the appellant for eviction decree alleging that due to cordial relations, the suit premises were allowed to be used by him for period of six months. They asserted that being close relative, the appellant (defendant) was permitted to use the suit tenement for 5/6 months’ ( 3 ) period within which he had assured to search for another tenement on rental basis. Since he is brother-in-law of plaintiff No.1 - Pralhad and had no accommodation available at Bhusaval, he was inducted as short term licensee somewhere in 1978 i.e. four years before the suit which was filed in 1982. He did not vacate the suit tenement. Therefore, by virtue of notice dated 14-07-1980, he was called upon to vacate the suit tenement and deliver possession thereof to plaintiff No. 1- Pralhad. The notice was not complied with. Hence, plaintiff No. 1- Pralhad filed the suit. Subsequently, plaintiff No. 2 – Gajanan was impleaded as plaintiff No. 2 due to his purchase of the house property from plaintiff No. 1 – Pralhad. 5. By filing written statement (Exh-10), the appellant resisted the suit. According to him, he was inducted in the premises as a tenant in respect of three rooms of the house property. He denied that there was permissive user for short duration of 5/6 months. He admits relationship with plaintiff No. 1 – Pralhad. His case before the trial Court was that he was monthly ( 4 ) tenant of the premises and had agreed to pay Rs. 25/- p.m. as rent. He asserted that he was paying the agreed rent regularly. His case further was that though the rent was being paid, yet, plaintiff No.1 – Pralhad did not issue receipts nor he insisted for the receipts due to close relationship between them. He denied all the material averments made by the plaintiffs. 6. The parties went to trial over the issues settled by the learned trial Judge. The learned trial Judge held that the premises were not given to the appellant on account of his close relations with plaintiff No.1 – Pralhad and without any rent. The trial Court rendered finding that the appellant is tenant of the suit premises. The trial Court also held that no attornment notice was given to the appellant and, therefore, the suit was bad in as much as plaintiff No. 2 Gajanan had no cause of action to seek eviction decree. The trial Court, therefore, dismissed the suit by accepting the status of the appellant as a tenant of the premises in question. The first Appellate Court, however, held that he did not prove tenancy rights and ( 5 ) that he was merely a licensee at the mercy of original plaintiff No. 1 – Pralhad. The first Appellate Court, therefore, reversed the findings of the trial Court and decreed the suit. 7. Heard learned counsel for the parties. 8. It is worthwhile to notice that the only dispute between the parties is in respect of status of the appellant qua the suit tenement. Whether he is proved to be a licensee of plaintiff No.1 – Pralhad or he is a tenant is the core issue involved in the second appeal. The grounds No. (XVIII), (XIX) and (XX) shown in the appeal memo were treated as the substantial questions of law involved in the second appeal. The relevant substantial questions of law are reproduced as follows. “(XVIII) Whether the finding with regard to the non-applicability of Bombay rent and Hotel Lodging Rate Control Act, 1947 recorded by the lower Appellate Court, is correct and proper ? ( 6 ) (XIX) Whether the respondent No. 2 has any right to seek possession from the appellant in absence of any attornment notice or any notice of termination of tenancy or in absence of any right to sue or continue the proceedings against the appellant ? (XX) Whether the lower Appellate Court has properly recorded the finding with regard to the judgement and order passed in Miscellaneous Civil Appeal No. 47 of 1980, when, admittedly, the said judgement has become final between the parties ?” 9. The evidence on record goes to show that the open plot under the house property was previously a part of agricultural land. The land was converted for non- agricultural use. Thereafter, the house property was constructed on the plot in question. The appellant was allotted three southern rooms. He resides in the said tenement. The version of PW2 Pralhad would show that the appellant was allowed to reside in the three southern rooms due to friendly terms and there was no agreement to pay rent in respect of the said premises. It cannot be over-emphasized that the transaction occurred between ( 7 ) PW2 Pralhad and DW Thakurdas, yet, there is no documentary evidence to support the contentions of either of them as regards the nature of the transaction. It is well settled that the plaintiffs must stand or fall on the basis of material evidence which is put forth by them. They cannot be permitted to take advantage of the weakness in the defence version. Obviously, it is necessary to examine whether the plaintiffs have proved that the house property in question was given to the defendant (appellant) as licensee. In this context, PW Pralhad states that appellant Thakurdas was allowed to reside in the suit premises due to friendly relationship. He deposed that the three rooms were given to the appellant for short duration. He did not specify the period for which the license was granted. He deposed that he issued notice (Exh-34) and called upon the appellant (defendant) to vacate the suit premises. He further deposed that during pendency of the suit, he alienated the suit plot alongwith construction in favour of plaintiff No. 2 Gajanan. He deposed that by virtue of sale-deed executed in favour of plaintiff No. 2 Gajanan, he also ( 8 ) transferred right to recover possession of the suit premises. He admits, unequivocally, that since time of construction of the premises, the appellant was in possession thereof. He further admits that he had no animosity against the municipal officers. He admits that after filing of the suit, the appellant had filed an application for determination of standard rate. He further admits that the appellant obtained electricity connection to the residential premises, at his own costs. He further admits that walls of the suit premises are of bricks and mud whereas the floor is of Shahabad tiles. The roof of the house property is of galvanized zinc sheets. 10. Copy of the Municipal Tax Register (Exh-36) reveals that the appellant’s name was shown in the column of occupant/tenant. It is admitted by PW Pralhad that he used to pay municipal taxes. He further admits that the appellant had given reply to the notice. Thus, two things are manifestly clear. First, the appellant gave immediate reply to the notice served on him by Plaintiff No.1 Pralhad. Secondly, respondent No. 1 ( 9 ) Pralhad never objected the municipal entry appearing from the tax register which indicates status of the appellant as a tenant, although he admittedly used to pay the taxes when the said entry which could have come to his notice. The oral evidence of PW Pralhad does not show as to in what capacity, the electricity supply was obtained by the appellant. 11. There is oath against oath. The transaction was not witnessed by any other person. Though PW3 Dodhu was examined in order to prove that the appellant is licensee, yet, he did not render much help to the cause of the respondent No.1 Pralhad. He is father-in-law of plaintiff No. 2 Gajanan. 12. The testimony of DW1 Thakurdas purports to show that he had taken the three rooms on rental basis. He denied that there was agreement of license for a short duration of 5/6 months. His version purports to show that he had filed application (Misc. Appln. No. 47/1980) for fixing of standard rent. His application was allowed vide judgement (Exh-41). It emerges from the ( 10 ) record that after fixing of standard rate under the provisions of section 11 of the Bombay Rent Act, the house property was transferred by respondent No.1 – Pralhad in favour of respondent No. 2 Gajanan. It is admitted by DW Thakurdas that plaintiff No. 1 – Pralhad alienated the house property to plaintiff No. 2 Gajanan during pendency of the suit. Neither of them challenged the proceedings for fixing of the standard rent. 13. Once it is noticed that the standard rent was fixed at rate of Rs. 25/- p.m., then it goes without saying that landlord-tenant relationship could be presumed by the Courts below. It was for the plaintiffs to rebut the evidence which transpires from the findings of the Court regarding the tenancy rights of appellant Thakurdas. Another important circumstance is that the possession was with appellant Thakurdas since the time of construction of the house property. The plaintiff’s case was that about four years before filing of the suit, defendant Thakurdas was inducted in possession as a licensee. The suit was filed in 1982. It was alleged that only for 5 to 6 months’ period, the suit premises ( 11 ) were given to the appellant’s use. If that was so, it is not clear as to why the notice (Exh-34) dated 14-07-1980 was issued after a considerable period of more than one and half year from the date of expiry of the licence. Ordinarily, a prudent person would have immediately asked for restoration of possession. Though the appellant is brother-in-law of defendant No.1 – Pralhad, yet, it was not explained as to what were the special circumstances which urgently required consideration of the request of the appellant for the accommodation. Though the order rendered by the competent Court in the proceedings arising out of application under section 11 of the Bombay Rent Act cannot be termed as res judicata in relation to the suit for eviction, yet, it would be useful to understand the conduct of the parties. There was no reason for defendant No.1 – Pralhad to keep silence after the fixation of standard rent at rate of Rs. 25/-. He had no reason to remain absent in the said proceedings. 14. There is yet another important reason as to why it is difficult to substantiate the view taken by the ( 12 ) first Appellate Court. The conduct of plaintiff No. 2 - Gajanan also may be taken note of. He did not file copy of the sale-deed executed in his favour by defendant No. 1 – Pralhad. He did not ascertain whether the possession of the appellant was permissive or as a tenant. In other words, he did not make due inquiry before purchasing the house property. The conduct of the parties and attending circumstances go to show that it is more probable that the suit premises were let out to the appellant by respondent No.1 – Pralhad. The learned Civil Judge had, therefore, rightly dismissed the suit. The eviction decree cannot be rendered by the Civil Court when the dispute is between the landlord and the tenant. The respondents were required to seek appropriate remedy under provisions of the Bombay Rent Act. The respondent No. 2 did not give notice of attornment of the tenancy rights to the appellant. 15. Considering the foregoing reasons, I am of the opinion that the impugned judgement is unsustainable. The first Appellate Court ought to have held that the eviction decree was without jurisdiction and the suit ( 13 ) for eviction was liable to be dismissed. In this view of the matter, the second appeal is allowed. The impugned judgement is set aside. The Suit (R.C.S. No. 55/1982) stands dismissed. The parties to bear their own costs throughout. 16. In view of disposal of the second appeal, civil application Nos. 1515/1993 and 5744/2007 do not survive and hence, stand disposed of accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa168-93