: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4535 OF 1992 1.M/s.Vimal Corporation, a partnership firm, having their address at Khetan Building, Opposite Ritz Hotel, Churchgate, Bombay – 400 020. (their present address being Flat No.2, 4th floor, Vasant Mahal, `C’ Road, Churchgate, Bombay – 400 020. 2.Vimala Balkrishna Modi 3.Nitida Balkrishna Modi, Nos.2 and 3 being partners of No.1 above, having their office address at Khetan Building, Opp.Ritz Hotel, Churchgate, Bombay – 400 020. (their present address being Flat No.2), 4th floor, Vasant Mahal, `C’ Road, Churchgate, ...Petitioners Bombay-400 020. (Ori.Defendants) Versus M/s.Shree Shanti Textiles Mills Pvt.Ltd., a Private Limited Company, duly incorporated under the Indian Companies Act and having its registered address at Shree Shanti Textile Mills Compound, Off.Chirag Nagar, Bombay Agra Road, Ghatkopar, ...Respondents Bombay – 400 086. (Ori.Plaintiffs) ....... : 2 : Ms.Asha Bhambwani for Petitioners. None for Respondents. ...... CORAM : A.M.KHANWILKAR, J. DATED : NOVEMBER 11, 2009. JUDGMENT : 1. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the Court of Small Causes at Bombay dated 25th August 1992 in Appeal No.377 of 1986, which in turn reverses the Judgment and Decree passed by the Judge of the Court of Small Causes at Bombay in R.A.D. Suit No.5688 of 1981. The said Suit was instituted by Original Plaintiffs/Respondents herein for declaration that the Plaintiffs/Respondents are the lawful monthly tenants of the Original Defendants/Petitioners herein in respect of the land purchased from one George Salins, admeasuring 2 acres situated at Chirag Nagar, Bombay-Agra Road, Ghatkopar, Bombay with a well, temporary shed and cement tanks standing thereon and known/used as “Dhobi Ghat”. The Plaintiffs/Respondents further prayed for injunction to permanently restrain the Defendants/Petitioners from entering into or upon the suit property or upon any part thereof and from erecting any building or structure thereon : 3 : and from otherwise interfering with or interrupting the Plaintiffs/Respondents possession and enjoyment of the suit property without the due process of law. In the alternative, the Plaintiffs/Respondents further prayed that the Defendants/Petitioners be directed to deliver back to the Plaintiffs/Respondents possession of the suit land and thereafter not to disturb the possession of the Plaintiffs/Respondents. 2. In the Plaint as presented, it is stated that prior to 1955, one M/s.Manahar Textile Mills Limited were seized and possessed of factories and leasehold rights in the suit land and premises being the suit property. The suit property was attached to the dyeing and printing factory of the said M/s.New Manahar Textile Mills Pvt.Ltd., which was taken on lease from the original owner Mr.Joseph Paul Pareira on a monthly rent of Rs.45/- and subsequently increased to Rs.55/- from 11th May 1953. It is stated that the said M/s.New Manahar Textile Mills Pvt.Ltd. went into liquidation. As a result, in the winding up action M/s.Soloman & Company, Solicitors, were appointed as Liquidators. In furtherance to the order of winding up, the suit property was offered for sale in public auction to Uttamchand Manekchand Shah and Nyalchand Rupchand Shah, who constituted the firm M/s.Shree Shanti Textile Mills. The offer given by them was accepted by the liquidator : 4 : and the suit property was agreed to be transferred under Agreement dated 11th May 1953, whereunder, it was agreed to sell and assign the properties and factory of the said company in liquidation together with right, title and interest of the said Company in leasehold lands including the suit land. It is stated that in consideration of part payment of agreed sale price by the said Shri U.M.Shah and Shri N.R.Shah, the Liquidator on or about 1st July 1953 delivered possession of the plant and machinery and other articles comprised in the said factories and incidentally also put them in possession of the leasehold land on which the said business and factories were operated, including the suit land. It is then stated that the original landlord Shri Joseph Pareira had already expired and his widow Smt.Ankithere had stepped in his shoes, who in turn, accepted M/s.Shree Shanti Textile Mills as her direct tenants and started receiving Rs.55/- per month from the said firm. It is stated that ultimately under a Deed of Assignment dated 18th February, 1955 executed by the said M/s.New Manahar Textile Mills Ltd. and its liquidator the said Shri Soloman Moses, registered in the office of the Sub-Registrar, Bombay dated 23rd December 1955, the said Company and its Liquidators sold, assigned and conveyed all their right, title and interest in the said land known as “Dhobi Ghat” incidental to the sale and assignment of its factories and business to and in favour of the said : 5 : Uttamchand M.Shah and Shri Nyalchand R.Shah. It is the case of the Plaintiffs/Respondents that the said persons had purchased the business of the Company in liquidation as a going and running concern and thereafter, they carried on the same in the suit property. Later on, under an Agreement dated 23rd November, 1955, the said Shri U.M.Shah and Shri N.R.Shah as the vendors sold, assigned and conveyed to the Plaintiffs/Respondents (M/s.Shree Shanti Textile Mills Pvt.Ltd.) all their right, title and interest in their said business and incidental thereto, their right, title and interest in the suit land. The Plaintiffs/Respondents after coming into possession of the suit property started paying the rent to Ankithere who accepted the Plaintiffs/Respondents as direct tenant on the monthly rent of Rs.55/-. It is stated that later on by a Deed of Assignment dated 14th March, 1958 duly registered in the office of the Sub-Registrar, Bombay under Registered No. 2256 of Book No.1 dated 29th July, 1958 the said U.M.Shah and N.R.Shah as vendors sold assignment and conveyed to the Plaintiffs/Respondents all their right, title and interest in the business of M/s. Shree Shanti Textile Mills and incidental thereto, their right, title and interest in the suit property to Plaintiffs/Respondents. It is stated that the transfer firstly in favour of Shri U.M.Shah and Shri N.R.Shah and thereafter in favour of the Plaintiffs/Respondents is duly entered in the Government Property Records. : 6 : It is then stated that under the Deed of Conveyance dated 18th September 1958 entered between said Smt.Ankithere widow of Joseph P.Pareira and her son Peter Paul Pareira on the one hand as `Vendors’ and one George Salins on the other hand as `Purchaser’, they sold and conveyed the suit property to said George Salins. In the said transaction, one Shri Thomas D’Cunha, acted as Advocate for the purchaser George Salins. It is stated that thereafter the said Advocate Shri D’Cunha received the monthly rent of the suit land from the Plaintiffs/Respondents whenever the Plaintiffs/Respondents remitted the same in respect of the suit property to him, for and on behalf of George Salins, the subsequent owner of the property. The Plaintiffs/Respondents have placed reliance on the entries in the Books of Accounts maintained in the regular course of their business to substantiate that payment towards rent was made to Mr.Thomas D’Cunha on month to month basis between November 1955 to June 1964. In July 1964, it is stated that the Plaintiffs/Respondents came to know that the suit property was sold by Shri George to Defendants/Petitioners. For that reason, since July 1964, the Plaintiffs/Respondents No.1 started remitting the monthly rent of the suit land to Defendants/Petitioners. In the Plaint, reference is made to four such payments by cheque in the sum of Rs.55/-, Rs.275/-, Rs.275/- and Rs.110/- respectively, covering rents for different : 7 : periods between July 1964 to July 1965. It is stated that the said cheques were not encashed. For that reason, reverse entries were made in the Books of Accounts and since the latest address of Defendants/Petitioners was not known, no further remittances of rents were made. Instead, the Plaintiffs/Respondents continued to credit in their Books of Accounts amount towards monthly rents payable to the Defendants/Petitioners. It is then stated that since the time, the Defendants/Petitioners purchased the suit property, they avoided to accept any amount from the Plaintiffs/Respondents, particularly, towards monthly rents, though tendered by the Plaintiffs/Respondents from time to time by different modes. Therefore, the Plaintiffs/Respondents by their Advocate’s letter dated 25th July 1979 sent to the Defendants/Petitioners herein at their last known address recorded the said position and expressed their readiness and willingness to pay the outstanding dues towards rent. It is stated that even the said legal notice was returned with postal remarks “Not Known”. It is then stated that while in possession, the Plaintiffs/Respondents had permitted their employees to erect hutments on a portion of the open land for use as Employees’ Residential Quarters. Around 18 hutments were erected by their employees. The remaining open land was used for washing and dyeing the textile cloth. It is stated that the suit property is a vast open : 8 : land which remained unutilised and unprotected from outside interference. It was noticed that unknown persons attempted to commit trespass and erected hutments unauthorisedly on different parts of the land. But their attempts were foiled from time to time. Even complaints were lodged with the Police Stations in that connection. It is then stated that in the last week of November 1981, the Plaintiffs/Respondents have come to know from the Municipal Office at Ghatkopar that the Defendants/Petitioners were contemplating to develop the suit property and even had submitted building plans for sanction and approval. Immediately thereafter, the Plaintiffs/Respondents rushed to file the subject Suit for declaration, injunction and alternative relief of possession. The Suit was filed on 17th December 1981. 3. The Suit was resisted by the Defendants/Petitioners. In the written statement, the stand taken by the Plaintiffs/Respondents was stoutly denied. The specific case made out by the Defendants/Petitioners was that the suit land and structure was not attached to M/s.New Manahar Textile Mills Ltd. and therefore, could not have formed part of sale of assets of the said Company in liquidation by the Liquidator. The Defendants/Petitioners have specifically denied that the said Company in liquidation was ever in : 9 : possession of the suit property. Whereas, it was asserted that the Defendants/Petitioners were in actual possession of the suit property since the time they purchased the same from George Salins by registered Conveyance Deed dated 19th March 1964. The Defendants/Petitioners have asserted that the said Conveyance was entered only after issuance of public notice but no claims were registered. Moreover, the Defendants/Petitioners were paying municipal taxes in respect of the suit property. In fact, the Defendants/Petitioners were required to file several Suits against third parties to protect their possession of the suit property. In substance, the case of the Defendants/Petitioners is that the Plaintiffs/Respondents had no concern with the suit property and were never in possession thereof. On the basis of the rival pleadings, the Trial Court framed as many as six issues and answered the same as indicated hereunder: ISSUES FINDINGS 1. Is the suit barred by law of limitation? Yes. 2. Do Plffs.prove that they have paid proper Court fee on the relief for possession of the suit property? Not pressed. 3. Do plffs. prove that they are entitled to be declared lawful monthly tenants of defts. : 10 : in respect of the suit property? No. 4. Do plffs. prove that they are entitled to an order of permanent injunction as prayed in para 20(b)? No. 5. Do plffs. prove that they are entitled to order and decree for delivery of possession of the suit premises by defts. to plffs. as mentioned in para 20 (e-i)? No. 6. What order and decree? Suit dismissed. Consistent with its findings on the abovesaid issues, the Trial Court proceeded to dismiss the Suit with cost. 4. Against the said Judgment and Decree, the Plaintiffs/Respondents carried the matter in Appeal before the Appellate Bench of the same Court being Appeal No.377 of 1986. The Appellate Court formulated three points for its consideration and answered the same in favour of the Plaintiffs/Respondents and against the Defendants/Petitioners. The Appellate Bench has held that the Suit was not barred by limitation. Further, the Plaintiffs/Respondents were lawful tenants in the suit premises since 1955 onwards. Consistent with the said findings, the Appellate Bench was pleased to allow the Appeal and pass the following order: : 11 : “ORDER Appeal allowed. No order as to costs. The order and Judgment dt.3.5.1986 in R.A.Decl.Suit No.5688 of 1981 is set aside and in its place the following order is substituted:- “R.A.Declaratory Suit No.5688 of 1981 is decreed in the following terms:- It is hereby declared that the appellants are the lawful monthly tenants of the respondents in respect of the lands, hereditaments and premises altogether admeasuring 2 Acres and known as “Dhobi Ghat” and more particularly described in Ex.A to the plaint and situate at Chirag Nagar, Ghatkopar, Bombay 400 086. The respondents, their agents and servants are also hereby restrained permanently by an order and injunction of this Hon’ble Court from entering into or upon the said property described in Ex.A annexed to the plaint and/or upon any part thereof and/or from erecting any buildings or structures thereon or on any part thereof and/or from otherwise interfering with or interrupting the appellants possession and enjoyment of the suit premises, without due process of law. No order as to costs in the suit.” 5. The Defendants/Petitioners, therefore, have approached this Court by way of Writ Petition under Article 227 of the Constitution of India contending that the Appellate Court not only misdirected itself in reversing the well reasoned finding of facts recorded by the Trial Court but committed manifest error in opining on matters in issue, which opinion essentially is founded more on surmises and conjectures than tangible : 12 : evidence to substantiate the same. Although the Plaintiffs/Respondents have been duly served, no appearance was made when the matter was called out for hearing. Since the matter pertained to year 1992, the only option for the Court was to proceed with the hearing of the case by taking assistance of Counsel appearing for the Defendants/Petitioners. I would place on record my appreciation for the Counsel for the Defendants/Petitioners for her able assistance given to the Court. She invited my attention to all the relevant material on record to challenge the finding of fact recorded by the Appellate Court. The Advocate has also filed detailed synopsis as well as written submission. 6. Considering the issues that have been addressed by the Courts below and the oral arguments canvassed before this Court, broadly three points would arise for my consideration. Firstly, whether the Suit as filed was barred by limitation. Secondly, whether the Plaintiffs/Respondents were lawful tenants in the suit property. Thirdly, whether the Plaintiffs/Respondents were always in possession of the suit property. 7. Ordinarily, I would have straight away dealt with the issue of limitation. However, after examining the pleadings and other materials on : 13 : record, I was convinced that the issue of limitation in the fact situation of the present case was a mixed question of fact and law. As a matter of fact, much would depend on the finding to be reached in the context of Point No. 3. If it were to be held that the Plaintiffs/Respondents had lost possession in and around the property was purchased by the Defendants/Petitioners by Conveyance Deed dated 19th March 1964, it would logically follow that the Suit was barred by limitation, having been filed in the year 1981. In my view, therefore, it would be appropriate to deal with the issue of limitation a little later. 8. Before we proceed to consider the points on merits, the parameters to interfere in exercise of writ jurisdiction under Article 227 of the Constitution of India will have to be kept in mind. By now, it is well established position that merely because there is some error here or there, that can be no basis to exercise writ jurisdiction under Article 227 of the Constitution of India. The error must be manifest and apparent on the face of the record and a grave injustice or failure of justice has occasioned. The High Court does not sit in appeal over the findings recorded by the subordinate Court. The jurisdiction is only supervisory (See B.K.Muniraju vs. State of Karnataka – (2008) 4 SCC 451). In the present case, the finding : 14 : on facts recorded by the Courts below is divergent only in part. In that, both the Courts below have concurrently found that the original tenant in the suit property was M/s.New Manahar Textile Mills Ltd. The said Company went into liquidation. The Liquidator was made in-charge to dispose of the assets of the Company in liquidation, who in turn auctioned the rights of the Company in liquidation in the suit property. The firm M/s.Shree Shanti Textile Mills constituted by Mr.U.M.Shah and Mr.N.R.Shah purchased the rights of the Company in liquidation in the suit property in that public auction in 1953 after bidding. On that basis, an Agreement was entered between the Official Liquidator and Mr.U.M.Shah and Mr.N.R.Shah, whereunder they were put in possession and took over the rights of the Company in liquidation in the suit property and the structure standing thereon as a going concern from the liquidator. It was an involuntary transfer. Subsequently, a registered Deed of Assignment was executed in favour of the purchasers on 18th February, 1955. The said purchasers later on transferred their business as a going concern to the Plaintiffs/Respondents and the rights incidental in the suit property in favour of the Plaintiffs/Respondents by Agreement dated 23rd November 1955 and the registered Deed of Assignment dated 14th February, 1958. Both the Courts below have also concurrently found that since the time the : 15 : Plaintiffs/Respondents became tenant, they started paying monthly rent to Ankithere widow of the original owner of the suit property Joseph P.Pareira. She recognised the Plaintiffs/Respondents as her direct tenants in the suit property. The Plaintiffs/Respondents continued to pay monthly rent to her till September 1958 when the suit property was sold in favour of George Salins. The Plaintiffs/Respondents continued to pay amount towards monthly rent to Mr.D'Cunha by sending money order until July 1964 till they realised that the property was sold to Defendants/Petitioners herein under registered Conveyance Deed dated 19th March 1964. 9. The Trial Court, however, then proceeded to consider the case of the Plaintiffs/Respondents that after realising that the suit property was transferred by said George Salins in favour of Defendants/Petitioners herein, the Plaintiffs/Respondents started remitting the monthly rent by cheque directly to the Defendants/Petitioners, which, however, were returned back unencashed. The Trial Court opined that after the cheques were returned to the Plaintiffs/Respondents, no explanation was forthcoming as to why the Plaintiffs/Respondents did not take any action on that basis until filing of the present Suit in the year 1981. It then proceeded to infer that the Plaintiffs/Respondents may have lost possession of the suit : 16 : property in or around the time the Defendants/Petitioners purchased the suit property from George Salins on 19th March 1964. That opinion was founded on the circumstances that the document of Sale Deed Exhibit 24 clearly mentioned that the possession of the suit property was handed over to the Defendants/Petitioners at the time of execution of the said document and the document makes no reference to any existing tenancy rights in the suit property. The Trial Court has found as of fact that it is not disputed that the property sold under document Exhibit 24 was the same as the suit property described by the Plaintiffs/Respondents. It discarded the municipal assessment bills cum receipt produced by the Plaintiffs/Respondents as they pertained to period prior to March 1964 and were of no avail to substantiate the plea of possession of the Plaintiffs/Respondents on or after March 1964. It further found that the Plaintiffs/Respondents have failed to lead oral evidence to substantiate that they were in possession of the suit property after 19th March 1964. Further, that no explanation was forthcoming from the Plaintiffs/Respondents as to why no assessment bills were received in the name of Plaintiffs/Respondents from the Corporation. The Trial Court then placed reliance on the evidence of Plaintiffs/Respondents witnesses who had stated in their oral testimony that Plaintiffs/Respondents have stopped using the suit property for their business activity in 1964 for the : 17 : purpose for which it was used in the past. The Plaintiffs/Respondents’ witness admitted to have stopped work of bleaching, etc. in the suit property in and after 1965. The Trial Court also drew adverse inference against the Plaintiffs/Respondents because they failed to examine George Salins, who transferred the property in favour of the original Defendant No.1. The Trial Court also discarded the evidence of Plaintiffs/Respondents’ witnesses that the workers/employees of the Plaintiffs/Respondents were allowed to erect structures on the suit property while in service as the Plaintiffs/Respondents failed to examine any of the workers/employees. On the basis of the view so recorded, the Trial Court proceeded to hold that the Plaintiffs/Respondents have had lost possession of the suit property in or around the time the property was purchased by the original Defendant No.1 from George Salins on 19th March 1964 which was more than twelve years next before the filing of the Suit. Notably, the Trial Court proceeded to hold that the evidence on record unmistakably points out that Plaintiffs/Respondents were tenants of the suit property till the time the ownership thereof stood transferred to George Salins by virtue of Conveyance Deed dated 18th September 1958. The Trial Court then found that the Plaintiffs/Respondents have failed to show that their tenancy in respect of the suit property continued after the suit property stood transferred to George Salins. This : 18 : opinion is reached on the finding that the Plaintiffs/Respondents were not in a position to establish the fact that the payment made by them from time to time to one Mr.D’Cunha, Advocate was towards monthly rent and that the said person was authorised to collect the monthly rent for and on behalf of George Salins till 1964. The Trial Court discarded the entries in the Account Books of the Plaintiffs/Respondents for the relevant period as it found that there was no evidence to hold that Mr.D’Cunha, Advocate was advised to collect monthly rent on behalf of George Salins. For that reason, the Trial Court opined that the Plaintiffs/Respondents were not in possession of the suit property or they had lost or surrendered the same before the property was sold by George Salins to the original Defendant No. 1. In Paragraph No.41 of its Judgment, the Trial Court has noted that on review of the evidence on record, it was possible to trace Plaintiffs/Respondents’ tenancy in respect of the suit property till the same stood transferred to George Salins in the year 1958 and could be traced even till a year or two before 1964 when George Salins sold the same to Defendants/Petitioners on 19th March 1964. But there was absolutely no evidence to indicate that the Plaintiffs/Respondents continued to enjoy the same status in the suit property after 1964. It further held that the Sale Deed in favour of the Defendants/Petitioners clearly indicates that George : 19 : Salins put the Defendants/Petitioners in actual possession of the suit property. In other words, the Trial Court has found that the Plaintiffs/Respondents were inducted in the suit property as tenants thereof and remained in possession in that capacity almost till George Salins, the owner of the property transferred the suit property in favour of the Defendants/Petitioners. It is on that premises, the Trial Court opined that the Plaintiffs/Respondents were not lawful tenants in the suit property and having lost or surrendered possession thereof in or around 1964 were not entitled for any relief as claimed by them. 10. The Appellate Court on the other hand re-appreciated the evidence and material on record. It has concurred with the opinion of the