1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL REVISION APPLICATION NO.228 OF 2004. Ramesh s/o Madhavrao Shelke, age 39 years, occu. Business, R/o Nava Navyavak Colony, Plot No.2/B, Bhimnagar, Bhavsingpura, Aurangabad, (Prop.of the firm M/s Swati Kirana and General Stores). ..PETITIONER. ( ORI. PLAINTIFF ) VERSUS Bhaskar s/o Seetaram Pradhan, age 30 yrs., Occu. Service, r/o H. No.160/NS/48, Bhimnagar, Bhausingpura, Aurangabad. ..RESPONDENTS. ( ORI. DEFENDANT ) ... Shri H.M. Karwa, Advocate for petitioner. Shri A.P. Bhandari, Advocate for Respondent. ... 2 CORAM: S.S. SHINDE,J. RESERVED ON: 20th OCTOBER, 2010. PRONOUNCED ON : 28th OCTOBER, 2010. JUDGMENT: 1. This revision application has been filed by the petitioner – plaintiff against the judgment and decree dated 14th October, 2004 passed by the 5th Joint C.J.J.D., Aurangabad in R.C.S. NO. 774/2003. 2. The revision petitioner (hereinafter referred to as the petitioner) filed R.C.S. NO. 774 of 2003 before the Joint C.J.J.D., Aurangabad. The said suit was filed for recovery of possession of the shop-cum-room, of which description in detail has been given in paragraph 1 of the plaint. It is the contention o the petitioner that the petitioner was forcefully dispossessed from the suit premises. According to the petitioner, he had obtained plot on which the suit property is situated from the defendant on lease @ Rs.600/- per month since 9.9.1998 and constructed the structure thereon converting it 3 into the shop and he was running a grocery shop under the name and style of “M/s Swati Kirana and General Store” since 27th September, 1999 and for construction of the premises, he incurred expenses of Rs.65,000/- and as per agreed terms, he has been paying the rent regularly up till September, 2003. It is his contention that the original defendant – respondent herein, in collusion with the relatives of the defendant, with an intention to evict the petitioner from the suit property, started extending threats to the plaintiff – petitioner to vacate the suit shop from 20th August, 2003. It is further case of the petitioner that he filed complaint before the Police Commissioner on 20th August, 2003 and also at Police Station, Cantonment, Aurangabad but, no action was taken on the said complaints. Finally on 7.10.2003 at about 9.30 a.m. whilst the plaintiff was present in the suit shop, the defendant with the aid of the police person and other relatives of the defendant started throwing the general and kirana goods on the street and locked the shop by defendant and dispossessed the plaintiff illegally from the suit property 4 without following due course of law. Therefore, the petitioner filed civil suit with the following prayer: “The suit of the plaintiff may be decreed with costs and plaintiff be put in possession of the suit shop from the defendant and oblige/” According to the plaintiff / petitioner, the said suit was filed under Section 6 of the Specific Relief Act. 3. The 5th Joint C.J.J.D., Aurangabad by judgment and order dated 14th October, 2004 dismissed the suit with costs. Aggrieved by the said judgment and order, this civil revision application has been filed by the petitioner / plaintiff. 4. The learned Counsel appearing for the petitioner invited my attention to paragraphs 1- (a), 1(b), 2, 3 and 4 of the revision memo and submitted that the revision petitioner and respondents are close relatives and respondent 5 inducted the petitioner in possession on the oral tenancy basis on the suit land with the monthly rent of Rs.600/- from 9.9.1998. It is further submitted that the rent was paid till September, 2003. It is further submitted that the respondents have admitted that the petitioner is tenant and it is evident from the para 4 of the written statement of the respondent that “rent is not paid after 2001 by the revision petitioner.” It is further argued that the defendant is police constable and the same has been admitted in para no.7 of the written statement of the respondent. The learned Counsel invited my attention to the complaint (Exh.46) dated 20th August, 2003 to the Police Commissioner and submitted that since the respondent was giving threats to the petitioner asking him to vacate the suit premises, the said complaint came to be filed. In pursuant to the strained relations, the respondent was abusing his position in police department and certain other persons forcefully dispossessed the petitioner from the suit premises and he forcibly locked the suit premises. It is further submitted that on 7.10.2003 i.e. on the date of 6 the incident itself, the petitioner had filed complaint with the police station and the panchanama vide Exh.33 was completed in between 3.30 to 4.30 p.m. whereas, the complaint which had been received on 7.10.2003 has been exhibited at Exh.39. According to the learned Counsel for the petitioner, P.W.4 Dhanraj Namdeo Pawar, police constable, Police Station, Chhawani deposed that the police station officer received the complaint on 7.10.2003 for investigation. The said deposition remained unchallenged by the defendant in cross-examination. The learned Counsel further submitted that the contention of the respondent that the petitioner vacated the premises voluntarily and no taba pawati or panchanama were done in the said matter, is required to be rejected. It is further submitted that under Section 6 of the Specific Relief Act, 1963 what is required to inquire by summary proceeding is whether the person is dispossessed without his consent of the immovable property otherwise than in due course of law. There is no appeal and review permitted against the decision of the trial Court and the revision is not 7 prohibited by the legislation after the disposal of the suit in trial Court. It is further submitted that the trial Court committed material irregularities and also exceeded its jurisdiction while dismissing the suit of the plaintiff / petitioner. The trial Court while admitting on record that there is complaint dated 7th October, 2003, misguided itself that no complaint was filed by the revision petitioner on 7.10.2003 and the said finding is perverse and required to be interfered with. The further observations of the trial Court that the articles which have been thrown out from the shop, are not thrown but kept to display in the shop is also perverse finding. It is the case of the petitioner that while forcefully dispossessing the petitioner, the shop was locked by the respondent at 9 a.m. and in ordinary course of business no shopkeeper will display the goods on the road out side the shop and nobody would invite the panchanama for displaying the thrown article. The fact that in pursuance of the complaint on 7.10.2003, the panchanama was drawn itself shows that there was no consent for 8 vacating the premises. The trial Court ought to have held that there is no Taba Pawati / possession receipt produced by the defence to substantiate the contention that the petitioner has voluntarily given possession of the suit premises to the respondent. In certain circumstances of the case when the relations are strained, the better and most reliable evidence would be to execute documentary evidence of possession of the suit premises. In absence of documentary evidence of the receipt of possession, it is clear case of the adverse inference against the defendant and it is confirmed that forcefully petitioner has been dispossessed on 7.10.2003. The learned Counsel, in support of his contention, placed heavy reliance on the reported judgment of the Supreme Court in case of S.R. Ejaz v. The Tamil Nadu Handloom Weavers Co-operative Society Ltd., reported in AIR 2002 SC 1152 and submitted that the Supreme Court has clearly opined the nature of evidence required in such a case. The facts were eloquent and no further evidence was necessary not anything was required to be re- 9 appreciated. It is to be stated that admittedly there is no document to indicate that petitioner willingly handed over the possession of the suit premises. According to the Counsel for the petitioner, if the petitioner had willingly handed over the possession, he would not have immediately lodged the criminal complaint and made representation to the higher authorities for taking action nor he would have filed a writ petition for appropriate directions. The learned Counsel further submitted that in view of the aforesaid judgment of the Supreme Court, the civil revision application deserves to be allowed. He further invited my attention to the pleadings in the plaint, the impugned judgment and order, and other documents on the record and submitted that the trial Court has travelled beyond the prayers and pleadings and the issue fallen for consideration and thereby recorded the findings which were unwarranted and also some of the findings are perverse and contrary to the record. The trial Court has committed irregularity and exceeded its jurisdiction while entertaining the suit. He, therefore, submitted 10 that the civil revision application deserves to be allowed. 5. On the other hand, the learned Counsel for the respondent / defendant submitted that it is the plaintiff who has claimed ownership of the construction, though he has admitted ownership of the defendant over the land. The Counsel for respondent invited my attention to the paragraphs 3 to 6 of the plaint and submitted that such a claim is beyond the scope of section 6 of the Specific Relief Act and, therefore, the plaintiff has prayed and pleaded beyond the scope of section 6 of the said Act and the Court being a competent court to try other issues, was not left with any alternative but to give findings on the issues raised by the petitioner and, therefore, the stand of the petitioner that the trial Court has travelled beyond the scope and pleadings is required to be rejected. The petitioner has failed to prove the contents and execution of the complaint dated 20.8.2003 and has led contrary evidence, showing the complaint was made on 7.10.2003. There is no averment in the plaint that, on 7.10.2003, complaint was filed. The 11 learned Counsel invited my attention to the written statement filed by the defendant and submitted that the defendant has specifically denied the forceful dispossession. It has been stated in the written statement that as the defendant was in arrears of rent and as the parties are relatives, it was mutually agreed that the plaintiff would vacate the premises and defendant would not claim any rent. It is pertinent to note that the parties to the proceeding are relatives. Even, as per the plaint there is no written agreement of tenancy, no rent receipts are on record so as to establish payment of the rent. The fact that rent was not paid and it was mutually agreed to relinquish the possession and arrears of rent has been stated. The petitioner has not established payment of rent on record. The learned Counsel invited my attention to the evidence of P.W.1 Ramesh s/o Madhavrao Shelke and submitted that the petitioner has admitted that the defendant is owner of the suit premises. Though the petitioner has claimed ownership of 12 construction, no evidence in that regard was produced on the record. If the petitioner claims or desires to claim ownership, he is at liberty to file separate suit for establishing title, if so advised, in view of section 6(4) of the Specific Relief Act, 1963. In para 6 of the revision application, though it is stated that the complaint was made on 20.8.2003 to Chhawani Police Station, however, in plaint it is stated that it was also made to the Commissioner. But, the same is not established on record. In cross- examination, P.W.1 has admitted that the parties are relatives. The ownership of construction is further agitated. However, the same is beyond the scope of Section 6 of the Specific Relief Act. The learned Counsel further invited my attention to the evidence of P.W.4 Dhanraj Namdeo Pawar. According to the learned Counsel for respndent, this witness has proved the panchanama (Exh.35). In cross-examination, this witness has admitted that he did not find any damages to the articles of the complainant as alleged by him. He further deposed that he did not find truth in the allegations of the complainant in the complaint 13 dated 7.10.2003. He further invited my attention to the evidence of P.W.5 Kacharu Chavan and P.W.6 Kailas Khambat. It is stated that the plaintiff’s witness Kacharu Ambadas Thorat stepped in the witness box and he has stated that, on 20.8.2003 no complaint was filed by the plaintiff in the police station. He further admitted that as the said document was not there, the same could not be produced. The learned Counsel also invited my attention to the evidence of P.W.8 Digambar Shamrao Pagare and submitted that this witness stated that the original of complaint dated 20.8.2003 was not found. Digambar stated that only the receipt of the same i.e. endorsement was identified and it was the same endorsement which was exhibited. The learned Counsel further invited my attention to the witnesses of the defendant and submitted that they have established that the possession was voluntarily delivered. The learned Counsel further invited my attention to alleged complaints at Exh.33 and 46, panchanama below Exh.35 and submitted that these documents have been considered properly by the trial Court and 14 the Court has arrived at the correct conclusion. The learned Counsel referring to the judgment of the Supreme Court in the case of S.R. Ejaz (supra), submitted that there are distinguishable factors in the case in hand and in that case. In the case of S.R. Ejaz (supra), the parties were not relatives, as is the case in the present case. There the proceedings for eviction were lodged and the evidence was collected. Even writ petition was filed before the High Court seeking directions for enquiry. In the present case, no criminal case is pending. No record was produced before the trial Court, regarding such complaint. In that case, plea of surrender on one hand and relinquishment of right to claim arrears of rent was not taken and established on record, as is done in the present case. In the said case, on considering the facts and circumstances of case, the High Court has quashed impugned order and remitted the proceedings back to the trial Court. It is further submitted that it is settled position of law that it is the plaintiff who has to prove his 15 case as per his evidence. He cannot rely upon the alleged weakness in the defence. Here the plaintiff himself has failed to prove the forceful dispossession. The learned Counsel invited my attention to para 4 of the reported judgment in the case of Ramdas vs. Salim Ahmed, reported in 1998(9) SCC 719. He further submitted that the trial Court had the advantage to see the conduct of the witnesses and normally even the Court of Appeal would not interfere in the appreciation of evidence by the trial Court. The scope of revisional jurisdiction is further limited. He placed reliance on the reported judgment in the case of Madhusudandas Vs. Narayanibai & others, reported in 1983 Mh.L.J. 402, wherein it is held that if there is a conflict of oral evidence on the matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that, the appellate Court should permit the finding of fact of the trial Court to prevail. The learned Counsel in order to support his contention that there is very limited scope for exercising revisional jurisdiction, relied on various 16 judgments of the Supreme Court as well as this Court. He invited my attention to the observations of the Apex Court in case of Madhusudandas (supra) that, `the High Court should also have reminded itself that the witnesses had given their evidence before the trial court which had the opportunity of seeing their demeanour in the witness box and tho appreciation of their evidence by the trial court had to be given due consideration in the light of that fact.’ The learned Counsel invited my attention to the reported judgment of the Supreme Court in the case of Ramdas (supra) and more particularly, para 4 of the said judgment. The learned Counsel for the respondent, therefore, would submit that once the finding of fact is recorded by the Court below that there is no forceful dispossession of the petitioner, this Court may not interfere in revisional jurisdiction in the findings of fact arrived at by the Court below. 8. I have given due consideration to the submissions of the learned Counsel for the 17 parties, perused the entire record made available and also the civil revision application, annexures thereto and various judgments cited on behalf of the parties. 7. At the outset, it would be relevant to refer some of the findings of facts recorded by the trial Court. In para 4, trial Court framed the following issues for its consideration / determination: “ ISSUES FINDINGS. I. Whether defendant proves the surrender of possession and tenancy right by plaintiff in his favour? In affirmative. II. Whether the plaintiff proves that he has been illegally dispossessed by the defendant? In negative. III. Whether the plaintiff is entitled to the relief of possession? In negative. IV. What order and decree? Suit is dismissed.” 18 While answering Issue No.I, the trial Court held that the defendant proves surrender of possession and tenancy rights by the plaintiff in his favour. While answering Issues No.II & III, the Court held that the plaintiff failed to prove that he has been illegally dispossessed by the defendant and plaintiff is not entitled to the relief of possession. In para 7, the trial Court has recorded admitted facts; firstly, the plaintiff and defendant are relatives; secondly, description of the suit property, boundaries and area thereof are not disputed by both parties; thirdly, the existence of tenancy between plaintiff and landlord and defendant qua-tenant in the suit property as plaintiff in his examination-in-chief has deposed that he is doing business in the shop which is owned by the defendant. Therefore, the petitioner – plaintiff has admitted ownership of the defendant over the suit property. In para 7, the Court has reached to the conclusion that the petitioner – plaintiff was monthly tenant of defendant in suit property @ Rs.600/- per month. In the same para, the Court has also reached to the conclusion that the 19 agreement of tenancy between plaintiff and defendant was an oral one. The trial Court has referred to Exhs.36, 39, 20 and reached to the conclusion that the defendant has never issued any rent receipt at all at any point of time in favour of the plaintiff. The trial Court has observed that the contention of the defendant that there was mutual confidence and trust and everything between the parties to the suit being oral one and without complaint until the alleged suit incident dated 7.10.2003. In such circumstances, the trial Court agreed with the defence submission that the facts and circumstances are to be viewed with preponderance of probability as it is a civil dispute and not for strict proof as all the conduct of plaintiff supports the defence theory. The trial Court, in para 8 has dealt with Issues No.I and II after appreciating the evidence brought on record by the respective parties. The trial Court has referred the evidence of plaintiff and observed that in the deposition of plaintiff he has added name of other persons along with defendant and also referred to the assault by the defendant and 20 others to him. However, he has not stated that the defendant / accompanying persons had put lock to his said shop, though he has stated in his plaint. The trial Court has also taken note that no where in the plaint the plaintiff has mentioned that he lodged complaint on 7.10.2003 itself. The trial Court has referred to the evidence of P.W.4 Dhanraj from Chhawani Police Station, who has deposed about receiving the complaint of the petitioner on 7.10.2003. He in his evidence has stated that he visited the spot and drew spot panchanama in the presence of two panchas i.e. Eknath Dnyandeo Wakhare and Shivaji Gire. However, the panchanama prepared by the P.W.4 in presence of two panchas, does not support the case of the plaintiff that the articles from the shop were thrown out by the defendant and other persons. The defence examined panch witness namely Eknath who stated that the plaintiff voluntarily removed all articles and put the defendant in possession of the suit shop. The trial Court has extracted the passage from the evidence of defence witness Eknath Dnyandeo Wakhare D.W.2. He has fully 21 supported the case of the defendant that the plaintiff has voluntarily removed his own articles from the grocery shop and kept outside, waited for transportation and thus, voluntarily handed over possession of the suit premises because of his inability to pay rent since January, 2002. The trial Court has observed that the evidence of D.W.2 remained un-shattered, both in his cross-examination and that of defendant as well. The Court has also observed about the evidence of D.W.3 Santosh Paraji Lokhande, who has stated, ”I have correctly stated in my affidavit (Ex.18) that on 7/10/2003 plaintiff told to the defendant that he is in arrears of rent and could not pay it. Not true to say that myself and defendant have forcibly dispossessed the suit property by throwing plaintiff’s articles outside it. Not true to say that out of friendly relations I helped defendant for illegally dispossessing the plaintiff from suit property.” The trial Court has also referred to the evidence of other witnesses. The trial Court, while appreciating the arguments of the Counsel for the defence, observed that the case 22 in hand is required to be considered from the angle that the parties were relatives, tenancy was oral, payment of rent oral, mutual confidence and trust, there was no rule of law, or a straight jacket formula that pavti/possession was just and necessary to be executed, and therefore, this case stands on different footings than the cases in which there is a written agreement, rent is paid and receipts are given. The trial Court, ultimately, reached to the conclusion that D.W.2 Eknath Dnyandeo Vakhre and D.W.3 Santosh Paraji Lokhande reside and carry business in same suit locality and their presence in said locality is very natural, probable and trustworthy and knowing both plaintiff and defendant (all traders are of same community), have not supported the case of the plaintiff and deposed in favour of the defendant. They are independent witnesses of the locality whose presence is very natural, probable and proved, whereas, P.W.4 Dhanraj who is witness of plaintiff has not brought anything on record to show that D.Ws.2 and 3 are not trustworthy witnesses. The trial Court has also referred to the examination-in-chief and cross- 23 examination of the P.W.4 Dhanraj and observed that in his examination-in-chief (Exh.32), page 1, last two lines, he deposed, “I had observed the spot of the incident as well as place surrounding to the place of incident and also interrogated the neighbourer of the place of the incident.” In his cross-examination Exh.32, page 2, para no.2, admitted that, “I did not find truth in the allegations of the complainant (here present plaintiff) as alleged by him. I did not find any truth in the allegations of the complaint in the complaint dtd. 7-10-2003.” P.W.4 was witness called by the plaintiff and hence his evidence has to be acted and relied upon since the report / complaint was lodged with him at Exh.33 and recording of spot panchanama was done by him. 8. The relevant facts, which are required to be mentioned, are that the plaintiff has pleaded and tried to establish that the ownership of the construction lies with him. However, he has not produced any evidence on record and it was not within the scope of section 6 of the Specific 24 Relief Act. On perusal of the entire material on record, it clearly