IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.1482 OF 1988. APPEAL NO.1482 OF 1988. APPEAL NO.1482 OF 1988. Smt Shardaben Narshibhai Patel ) since deceased by her heirs: ) Sunil Narsibhai Patel, ) R/o.A-4/6, Sunder Nagar, ) Malad (W), Bombay 400 064. )...Appellant Versus. 1. P.J.Thankappan, ) 2. Mrs Annie Fernandes, ) 3. Ms Tressa Joice Thankappan, ) 4. Joseph Bryan Thankappan, ) 5. Ivan Paul Thankappan, ) All of Bombay, Indian Inhabitants ) residing at 28D, Police Court Lane, ) Fort, Bombay 400 001. )...Respondents --- Shri Sanjeev A. Sawant for the Appellant. None for the Respondents. --- CORAM: CORAM: CORAM: ABHAY S.OKA, J. ABHAY S.OKA, J. ABHAY S.OKA, J. DATE DATE DATE : 29th January, 2008. : 29th January, 2008. : 29th January, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. I have heard the submissions of the learned advocate for the appellant yesterday. As none appeared for the contesting respondents, the appeal was kept today. Today when the appeal is called out, none appears for the contesting respondents. Therefore, I have proceeded to deliver the judgment. 2. The appellant is the original plaintiff who has taken exception to the judgment and decree dated 08th : 2 : 2 : 2 : April, 1988 passed by the learned Judge of the City Civil Court. With a view to appreciate the submissions made by the learned advocate for the appellant, it will be necessary to refer to the facts of the case in brief. According to the case of the appellant, she is the tenant in respect of a shed admeasuring about 1600 sq feet situated on Plot No.96/D, Mogra Road, Andheri, Bombay. According to the case of the appellant in the month of March 1968 the husband of the original defendant alongwith a broker approached the appellant’s husband and requested that the original defendant be allowed to use a portion of the said shed for the purpose of carrying on business of manufacturing paper packaging material. After deliberations it was agreed that the appellants should allow the original defendant to use and occupy 1/3rd portion of the shed on Leave and Licence basis at compensation of Rs.201/- per month. It was agreed that the licence will be for a period of 11 months ending on February 28, 1969. 3. According to the case of the appellant she allowed the original defendant to use and occupy 1/3rd portion of the suit shed. The 1/3rd portion was demarked by providing a partition inside the suit shed. According to the appellant she continued to occupy the remaining 2/3rd portion. : 3 : 3 : 3 : 4. The period of Leave and Licence expired on 28th February, 1969. Though the original defendant was called upon to vacate, he did not vacate. According to the appellant on or about 01st June, 1969 the original defendant removed the partition and forcibly occupied even the remaining 2/3rd portion. 5. The appellant issued advocates notice dated 16th June, 1970 calling upon the original defendant to stop wrongful and illegal use and occupation of the suit shed. The notice was replied to by the original defendant contending that the entire suit shed had been let out to the original defendant and only to suit the convenience of the appellant, a Leave and Licence Agreement was executed. Hence, a suit was filed by the appellant for mandatory injunction directing the original defendant to remove all her belongings and articles and things from the suit shed. A decree for possession was also prayed for. The appellant also sought arrears of compensation in respect of 1/3rd portion of the suit shed payable under the Agreement dated 01st April, 1968 together with interest thereon at the rate of 6% per annum. The appellant also prayed for compensation on account of wrongful occupation of the 2/3rd portion of the suit shed. 6. The suit was contested by the original : 4 : 4 : 4 : defendant. The main contention of the original defendant is that the appellant had agreed to create tenancy of the entire suit shed in her favour. It is the contention of the original defendant that to avoid difficulties as regards municipal taxes, income tax etc, a Leave and Licence Agreement was executed only in respect of 1/3rd portion of the suit shed. It was contended that the original defendant was in possession of the entire suit shed as a tenant thereof. After demise of the original defendant, her legal representatives (respondents herein) who were brought on record filed their written statement raising similar contentions. 7. The trial Court framed various issues. The trial Court held that the appellant has failed to prove that only 1/3rd portion of the suit shed was given to the original defendant on Leave and Licence basis and that the original defendant encroached upon the remaining portion of the suit shed. The trial Court also held that the appellant has failed to prove that the original defendant was a trespasser in the suit property. The trial Court recorded a finding that the the evidence on record indicates that though the Agreement refers to 1/3rd partition, entire godown/shed was given on leave and license. The trial Court held that it was not necessary to decide the issue No.4 which : 5 : 5 : 5 : was framed on the basis of plea of tenancy raised by the original defendant. The trial Court decided the issue of jurisdiction in favour of the appellants and thereafter proceeded to dismiss the suit. 8. The learned advocate for the appellant submitted that the evidence on record clearly shows that the original defendant or the present respondents failed to establish the plea of tenancy. He submitted that once plea of tenancy is not established, the decree must follow in favour of the appellant. He submitted that as the respondents failed to establish their plea of tenancy, the case made out by the appellant ought to have been accepted. He invited my attention to the oral and documentary evidence on record and submitted that the respondents have failed to establish their plea of tenancy. 9. With the assistance of the learned advocate for the appellant I have perused the pleadings and notes of evidence. The appellant-plaintiff examined her husband. The appellant-plaintiff also examined one Mujeed Khan Mahamad Khan as a witness. The respondent No.1a examined himself. The respondents also examined one Moinuddin Naik as a witness. The third witness examined by the respondents was Shabbir Mirza and the last witness examined by the respondents is one Mohandas : 6 : 6 : 6 : Rajapure who was a Sales Tax Officer. 10. Perusal of the evidence on the husband of the appellant shows that execution of Leave and Licence Agreement dated 01st April, 1968 between appellant and the original defendant has been proved. According to the said witness he alongwith the respondent No.1a signed the said Agreement as attesting witnesses. The said witness have been extensively cross-examined by the advocate for the respondents as regards the nature of use of the remaining portion of the suit shed by the appellant. In the cross-examination he produced a sketch of the suit shed. 11. The second witness examined by the appellant Mujeed Khan is a person who knew the appellant’s husband as well as respondent Nos.1a to 1d. He has stated that he had given his own factory to respondent No.1(a) for conducting. He stated that the respondent No.1(a) informed him that he had taken the premises of the appellant and therefore, he would make arrangement for vacating. He deposed that he visited the suit shed and noticed that there was a partition inside the suit shed. He stated that on one side of the partition appellant’s goods were stored. It must be stated here that the said witness has filed a suit in the year 1985 against the respondent No.1(a) for recovery of his factory premises. : 7 : 7 : 7 : The substantial part of the cross-examination of the said witness is on this aspect. 12. The respondent No.1a stepped into witness box. He stated that he had offered monthly rent of Rs.201/- to the appellant’s husband in addition to electricity charges. According to him the appellant’s husband suggested him that to avoid difficulty of payment of income tax and municipal assessment, a Leave and Licence Agreement may be entered into. In paragraph No.11 of the cross-examination he was shown the Leave and Licence Agreement. He admitted that the original defendant has executed the same and he himself has attested the same. The original defendant is the wife of the said witness. He admitted that the original defendant knew English language. He admitted that "it is true that fully knowing the contents of Exhibit A, at my direction my wife signed it". He admitted that after signing the document he obtained possession of the suit premises. In paragraph No.13 he had admitted that he understood after reading the Agreement at Exhibit A that only 1/3rd portion of the suit godown was to be given to him under the Agreement. He pointed out that the stamp paper on which Deed was executed was purchased by him in his own name. He stated that he handed over the stamp paper to the appellant’s wife. In the cross-examination he admitted that he knew the difference between tenancy and : 8 : 8 : 8 : a licence. He stated that when landlord gives a premises it is given on tenancy and when tenant give premises it is given on leave and licence basis. 13. The second witness examined by the respondents stated that the original defendant was already in possession of the entire suit shed. The witness No.3 examined by the respondents is an officer of Bombay Mercantile Co-operative Bank who deposed that the record of the bank shows that the account of the respondents was opened by one Mr P.J.Thankappan. The evidence of witness No.4 examined by the respondents may not be relevant as he was a Sales Tax Officer at the relevant time. 14. Thus, what emerges from the evidence is that the deceased defendant had knowledge of English language. Moreover, the Agreement was readover by her husband to her. The respondent No.1a admitted the execution of Leave and Licence Agreement at Exhibit A and stated that the said Agreement was a Leave and Licence Agreement and not a Tenancy Agreement. Thus, the execution of the Leave and Licence Agreement pleaded by the Appellant has been duly proved. Even taking the evidence of the respondent No.1a as correct, it shows that he had read the Leave and Licence Agreement and thereafter he had obtained signature of the original defendant who was his : 9 : 9 : 9 : wife on the said Agreement. 15. In the context of the aforesaid discussion, it must be noted that apart from the aforesaid evidence, there is no other evidence led by the respondents to establish the plea of tenancy. The trial Court has recorded a very cryptic finding on this aspect. There is no clear finding recorded by the trial Court that the respondents established that they were tenants of the suit shed. In my view, the trial Court ought to have answered issue No.4 on merits and answer should have been that the respondents (legal representatives of the original defendant) failed to prove their plea of tenancy. 16. There is no dispute raised as regards title of the original plaintiff. The execution of Leave and Licence Agreement in respect of 1/3rd portion of the suit shed has been duly proved. In so far as remaining portion of the shed is concerned, admittedly the respondents are in possession and they have not led any evidence to show that there was a tenancy created in their favour in respect of the suit shed. The respondents have not disputed the title of the appellant or her predecessor. As the respondents have failed to prove their plea of tenancy it is obvious that they have no right whatsoever to occupy the suit godown. As : 10 : 10 : 10 : regards 1/3rd portion of the suit shed, the right of the respondents came to an end on expiry of period of license and their possession thereafter is as tresspassers thereof. 17. Therefore, the case made out by the appellants (original plaintiff) that the original defendant was inducted as a licensee for consideration at the rate of Rs.201/- per month in respect of 1/3rd portion of the suit shed and the remaining 2/3rd area was unauthorisedly occupied by her has been duly established. The sum and substance of the aforesaid discussion is that the appeal must succeed. A case is made out for passing a decree in terms of prayer clauses (b), (c) and (d). 18. Accordingly, I pass the following order: (i) The impugned judgment and decree is quashed and set aside and Short Cause Suit No.4477 of 1971 stands decreed in terms of prayer clauses (b) to (d) of the plaint. (ii) The respondents will pay costs to the appellants throughout. (iii) Parties to act upon an authenticated copy of : 11 : 11 : 11 : this order. Judge. Judge. Judge.