: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.243 OF 1986 FIRST APPEAL NO.243 OF 1986 FIRST APPEAL NO.243 OF 1986 Subhadra Dayashankerlal & Anr. ...Appellants V/s. Ramdeo Bhairo Yadav & Ors. ...Respondents Mr.Abhay Patki with Mr.R.D. Mishra, Advocates, for the Appellants. Mr.G.K. Masand, Advocate, for Respondent Nos.1 to 3. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 1ST APRIL, 2008. DATE : 1ST APRIL, 2008. DATE : 1ST APRIL, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submission of the learned Counsel appearing for the parties were heard on 26th March, 2008. However, on account of paucity of time, the Judgment could not be dictated and, therefore, the Appeal is kept today for dictation of the Judgment. 2. The appellants-original plaintiffs have taken an exception to the Judgment and Decree dated 8th October, 1984 passed by the learned Judge of the City Civil Court at Bombay in a suit filed by them. 3. Briefly stated the case of the appellants is that one Smt.Mandodari Devi Sukhdeo Prasad was in use and possession of the suit property more particularly : 2 : described in paragraph No.1 of the plaint. The specific case of the appellants-plaintiffs is that on 8th April, 1979 an agreement was executed by the said Mandodari Devi in favour of the appellants by which she granted a lease in respect of land admeasuring 916 sq.ft. out of the property described in paragraph No.1 of the plaint on yearly rent of Rs.300/-. According to the case of the appellants-plaintiffs they had applied during the life time of the said Mandodari Devi to the Municipal Corporation for permission to establish a bakery on the said portion of the land let out to them. According to the case of the appellants, they obtained a permission of the Municipal Corporation to establish a bakery. Subsequently they obtained provisional registration of the bakery as a small scale industry. The case made out by the appellants-plaintiffs is that they are in possession of an area of 1216 sq.ft. It is their case that the bakery is put up in the area of 916 sq.ft. and over the additional area of 300 sq.ft. a roof has been put up. The said area is on the rear side of the bakery premises. 4. According to the case of the appellants-plaintiffs, the said Mandodari Devi died on 27th March, 1980 leaving behind the appellants and one : 3 : Sunita Bhatnagar, as her heir and legal representatives. The case of the appellants is that the 1st respondent (1st defendant) was an employee of late Mandodari Devi who used to collect rent from the occupants of the chawl constructed on the said land by the said Mandodari Devi. It is contended that though the 1st respondent had no right, title or interest in respect of the land described in paragraph No.1 of the plaint or any part thereof, the said respondent illegally entered the bakery premises constructed and repaired by the appellants and has started tying one cow therein. It is alleged that in the additional portion of the said bakery the 1st respondent has put two bales of grass. It is alleged that the 2nd respondent is the son of the 1st respondent and the 3rd respondent is a relative of the 1st respondent. 5. By amending the plaint, a case was made out that the 1st respondent forcibly dispossessed the appellants from the suit premises (i.e. the premises of the bakery) one week prior to the date of institution of the suit. By incorporating paragraph No.2a in the plaint, the appellants contended that as they have been dispossessed from the suit premises about a week prior to the filing of the suit, they were entitled to recover possession of the suit : 4 : premises under section 6 of the Specific Relief Act, 1963. By the amendment, paragraph No.2b was incorporated in the plaint in which it was contended that if the Trial Court comes to a conclusion that the appellants have failed to establish that the respondents have trespassed into the suit premises within a period of six months prior to filing of the suit, a decree for possession be passed as the respondents have no right, title or interest in respect of the suit premises. 6. Initially the prayer in the suit was for perpetual injunction. At the time of carrying out amendment further averments were incorporated in paragraph No.4a to the effect that as the respondents were in wrongful possession of the suit premises, the appellants are entitled to recover compensation/ damages at the rate of Rs.3,000/- per month. By incorporating paragraph No.4b, a case was sought to be made out for appointment of Court Receiver. The appellants prayed for a decree for possession against the respondents as well as a decree for mandatory injunction. 7. The suit was contested by the respondents by filing written statement. The contention of the : 5 : respondents in brief is that the suit premises always remained in possession of the 1st respondent and Smt.Mandodari Devi was in possession of the remaining portion of the property described in paragraph No.1 of the plaint. The respondents denied the case made out by the appellants regarding grant of lease by the said Mandodari Devi in their favour. The contention of the respondents was that the 1st respondent was in possession of the suit premises for more than 15 years. Therefore, a plea of adverse possession was raised. 8. The respondents contended that the alleged agreement dated 8th April, 1979 executed by Smt.Mandodari Devi was a bogus and brought up document made by one Dayashankerlal Munshi who claims to be the husband of the appellants. The other allegations made in the plaint were denied by the respondents. 9. Specific case made out by the respondents was that originally late Sukhdeo Prasad and after his demise the said Mandodari Devi had appointed the 1st respondent to collect the rent from the tenants. As the said Mandodari Devi was not in a position to pay the salary to the 1st respondent for a period of 10 years, a writing was executed by her acknowledging her : 6 : liability to pay the amounts to the 1st respondent. It is submitted that neither the said Sukhdeo Prasad nor Mandodari Devi had made a claim against the 1st respondent on the basis of the possession of the 1st respondent of the suit premises. The allegations of trespass were denied by the 1st respondent by contending that the 1st respondent was always in possession. 10. After amendment to the plaint, supplementary written statement was filed by the respondents controverting the allegations made in the amended plaint. 11. The learned Trial Judge framed following issues:- "(1) Whether the suit is bad for non-joinder of the necessary parties as alleged in Paragraph 2 of the Written Statement? (2) Whether the plaintiffs prove that they were in possession of the suit premises within six months prior to the date of filing of the suit i.e. June, 1981? (3) Whether the plaintiffs prove that they have any title to the suit premises and they they were wrongfully and illegally dispossessed from the suit premises by the defendants in the month of May, 1981 as alleged in : 7 : paragraph 2 and 2(a) of the plaint? (4) Whether the plaintiffs prove that the defendants are trespassers in the suit premises? (5) Whether the defendants prove that they are in possession of the suit premises since about fifteen years, prior to the filling of the suit and have become the owners thereof by adverse possession as alleged in paragraph 5 of the Written Statement? (6) Whether the plaintiffs are entitled to recover possession of the suit premises from the defendants? (7) Whether the plaintiffs are entitled to recover the damages or mesne profit as alleged in Paragraph 4(a) of the Plaint? (8) What orders? 12. On behalf of the appellants-plaintiffs, one Dayashankerlal Munshi stepped into witness box. The said Munshi claims to be the husband of both the appellants and the constituted attorney of the appellants. The appellants examined eight other witnesses. The 1st respondent examined himself and other four witnesses. 13. By the impugned Judgment and Decree dated 8th October, 1994, the suit was dismissed by the learned Trial Judge. In paragraph No.4 of the Judgment, the learned Trial Judge observed that the respondents did not claim any title to the suit premises except by : 8 : adverse possession. The learned Judge recorded that even according to the case of the appellants, their mother or father did not claim possession over the suit premises by lawful means and therefore, the learned Judge observed that both the parties to the suit were trespassers. 14. The learned Counsel appearing for the appellants has taken me through the pleadings and notes of evidence of the witnesses. His submission is that even the respondents have not disputed the title of Sukhdeo Prasad and on his demise the title of Mandodari Devi. He pointed out that the 1st respondent was only a rent collector appointed by Sukhdeo Prasad and subsequently by Mandodari Devi. He submitted that the appellants are admittedly the legal representatives of Sukhdeo Prasad and Mandodari Devi. He pointed out a finding recorded by the Trial Court that the suit was not bad on account of non-joinder of appellants’ sister Sunita Bhatnagar. It is submitted that in view of what is stated in paragraph No.2b of the amended plaint, the suit cannot be treated as one under section 6 of the Specific Relief Act, 1963. He pointed out the averments made in the plaint which show that the appellants were inducted in respect of a portion of land admeasuring 916 sq.ft. by the said : 9 : Mandodari Devi as lessees. It is submitted that the said Mandodari Devi never objected to the occupation of the additional area of 300 sq.ft. by the appellants. His submission is that obviously the appellants being the legal representatives of the deceased Mandodari Devi were entitled to claim possession over the suit premises from the respondents and in particular from respondent No.1. His submission is that as the 1st respondent has failed to establish the plea of adverse possession, the decree for possession ought to have been passed by the Trial Court. 15. The learned Counsel appearing for the respondents supported the impugned Judgment and Decree by pointing out that the alleged document of lease was not proved by the appellants. He submitted that the appellants could not establish their independent title as lessees to occupy the suit premises and in any event they have not established their possession. He invited my attention to the various findings recorded by the Trial Court. 16. The first question which will have to be decided is whether the appellants have established their title as pleaded in the suit. As pointed out : 10 : earlier, the learned Counsel for the appellants has submitted that in view of what is averred in paragraph No.2b of the amended plaint, the suit was not treated by the appellants as a suit under section 6 of the said Act of 1963. Therefore, though the Trial Court has framed an issue No.2 which may indicate that the suit was one under section 6 of the Specific Relief Act, 1963, the issue No.3 has been framed regarding the title of the appellants-plaintiffs in respect of the suit premises. In short, if answer to the aforesaid question is affirmative, the title of the appellants will be established and in that event the plea of adverse possession raised by the respondents will have to be considered on merits. 17. In sofar as title pleaded by the appellants is concerned, the averments made in the plaint and in particular paragraph No.1 clearly show that the appellants are not claiming title in their capacity as the legal representatives of Sukhdeo Prasad or Mandodari Devi. In paragraph No.1 of the plaint, the appellants have specifically relied upon grant of lease by Mandodari Devi during her life time in respect of area of 916 sq.ft. at the yearly rent of Rs.300/-. In the later part of paragraph No.1, the appellants have stated that they occupied an : 11 : additional area of 300 sq.ft on the rear side of the bakery premises put up over the area of 916 sq.ft. The appellants have not claimed any rights as lessees or tenants in respect of the said additional area of 300 sq.ft. At highest what can be said is that Mandodari Devi did not object to the occupation of the said additional area. Therefore, the title as claimed by the appellants-plaintiffs in the plaint is the title as lessees in respect of the area of 916 sq.ft out of the larger property described in paragraph No.1 of the plaint. The case of the appellants is that the 1st respondent was merely a rent collector who has forcibly occupied the suit premises and is a trespasser. 18. It will be necessary to refer to the deposition of Dayashankerlal Munshi who is the constituted attorney of the appellants. He claims that both the appellants-plaintiffs are his wives. In his deposition he claims that Sukhdeo Prasad was the owner of the property described in paragraph No.1 of the plaint. He relied upon an extract of inquiry register of the City Survey which was marked as Exhibit-"B". He also produced a property register card in evidence. According to him Sukhdeo Prasad died in August, 1968 who was survived by Mandodari : 12 : Devi, the appellants and one Sunita Bhatnagar. The said Mandodari Devi died on 17th March, 1980. The said witness reiterated that the 1st respondent was appointed as a rent collector by an agreement dated 4th December, 1962. He produced the said agreement in evidence. 19. The said witness deposed that in the year 1979 there was an agreement executed by the said Mandodari Devi in favour of the appellants. The said agreement dated 8th April, 1979 was sought to be produced in the evidence by the appellants. The witness claimed that he has signed the said documents on behalf of the appellants. He stated that the document was drafted by his Advocate Mr.R.D. Mishra who has signed the same as a witness. He stated that the bakery premises as well as the extended premises were constructed by the appellants in the year 1973-74. Thereafter, witness referred to various applications made by the appellants to the local authorities. Various documents relating to the for purchase of cement were produced. According to the version of the said witness, the work of repairing of the sheds of the bakery were carried on till 22nd/23rd May, 1981 He stated that the bakery shed was assessed to the Municipal taxes by the Municipal Corporation for the : 13 : period from 1st April, 1983 to 30th September, 1983. The said witness was extensively cross-examined by the Advocate for the respondents. It will be necessary to refer to the relevant part of the cross-examination as regards execution of the alleged document of lease. According to him the document was executed in the office of the R.D. Mishra, Advocate and the appellants were not present when the agreement was executed. When a query was made whether the appellants were desirous of examining Mr.R.D. Mishra, Advocate as a witness, the answer was after consulting his Advocate he would examine Mr.Mishra as a witness. The witness admitted that the agreement at Exhibit-K provides that the premises were taken on the basis of yearly rent. 20. The witness was confronted with an affidavit of Mandodari Devi dated 12th February, 1970 filed in Suit No.2194 of 1969. He stated that he was not the constituted attorney of Mandodari Devi and she had given a power of attorney to him only for one day. It is stated that he did not remember whether he has appeared as constituted attorney of Mandodari Devi in the aforesaid suit. He pleaded ignorance about the correctness of the contents of the affidavit dated 12th February, 1970 filed by the said Mandodari Devi : 14 : in the suit. 21. Another witness examined by the appellants Sitaram Vitthal Govekar is a Rationing Inspector. His evidence has been adduced to prove that certain cement bags were sanctioned to the appellants for carrying out the construction work of bakery premises. The deposition of the said witness is not relevant for proving the title. 22. Third witness examined by the appellants is Harish Chandra Govind Suki who was at the relevant time the Rationing Inspector in the office of the Deputy Controller of Rationing, "E" Region, Wadala, Bombay. He stated that as a part of his duties he was required to go for site inspection. Again his evidence has no relevance as regards proof of title claimed by the appellants. The 4th witness examined by the appellants one Ganpati Pandurang Shinde who was a Recovery Clerk in the Encroachment Department of the Tahsildar. Witness No.5 is Tukaram Shankar Prabhu who was working as a Clerk in the Rationing Department. His only evidence could not throw light on the controversy regarding title. The 6th witness is one Mr.L.H. Pandya who was Assistant Engineer working with the B.M.C. He produced some record i.e. the : 15 : plans submitted by the appellants for seeking repair permission. The witness No.7 Mr.K.S. Kurup is again an Engineer working with the Bombay Municipal Corporation. Witness No.8 Mr.S.R.Karnik is an Architect who had drawn plans for repairing the structure of the bakery. Above said witness has been extensively cross-examined. 9th witness has been examined by the appellants is Dr.Kasinath Krishnaji Soman, a retired Ward Officer of "T" Ward, Mulund, of the Mumbai Municipal Corporation. He was examined to prove a signature on letter dated 20th December, 1979. 23. As pointed out earlier, document dated 8th April, 1979 which is an alleged agreement of lease marked as Exhibit-K was sought to be relied upon. Even assuming that the said document was duly proved in accordance with the provisions of the Indian Evidence Act, 1872, what was purported to be created by the said document was a lease from year to year or in any event for a term exceeding one year. As per section 107 of the Transfer of Property Act, 1882, a lease of immovable property from year to year or for any term exceeding one year or reserving an yearly rent can be made only by a registered instrument. It is not even the case of the appellants that the said document at Exhibit-K was a registered document. : 16 : Apart from the consideration of the other documents relied upon by the appellants, the Trial Court has referred to the evidence of the 1st witness of the appellants as regards Exhibit-K. The learned Trial Judge has noted an important circumstance that though Mandodari Devi could go for execution of the said documents to the office of the Advocate, the appellants did not execute the said document and their husband and their alleged power of attorney holder executed the document. The constituted attorney of the appellants tried to make out a case that he had purchased stamp paper for execution of the lease and the said Mandodari Devi was with him when he purchased the stamp paper. A case was made out by the constituted attorney that the stamp paper was purchased from a vendor in a Small Causes Court at Bombay. The stamp paper on which the document at Exhibit-K has been executed does not support the case of the appellants that the same was purchased in the Small Causes Court. The learned Trial Judge found fault with the appellants on their failure to examine Mr.R.D. Mishra, Advocate as a witness who could have proved the execution of the document by Mandodari Devi. While referring to the conduct of the constituted attorney of the plaintiffs, the Trial Court in paragraph No.9 of the Judgment has observed : 17 : thus:- "In the cross-examination, P.W. No.1 Munshi has stated that he had married Subhadra on 1st July, 1970 and in 1976 he married the second plaintiff Susheela. As regards the age of Susheela, in the cross-examination he has stated (Page 19) that Susheela started staying with him from 1972. He did not remember the age of Susheela in the year 1972. He could not say whether she was major in 1972. He also did not know the present age of Susheela. It is obvious that Mr.Munshi is avoiding to give age of Sushila, because in 1972, she was no major and did not even marry him. Therefore, it is difficult to accept the case of Munshi that Subhadra and Sushila were given possession of piece of land and they constructed a shed on the said piece of land in 1973. It is also difficult to accept the case of the possession because all the while the daughters and mother were staying together after death of Sukhdeo Prasad." . The Trial Court rightly found that the version of the husband of the appellants was not sufficient to prove the execution of the document at Exhibit-K. In fact it was a case for drawing adverse inference against the appellants for not examining Shri R.D. Mishra, Advocate in whose presence the deceased Mandodari Devi allegedly executed the document. Shri Mishra was very much available for recording evidence. Therefore, the execution of the document is rightly held as not proved. : 18 : 24. Considering all the aspects, the learned Trial Judge held that it was not possible to accept the case made out by the appellants that area of 930 sq.ft. was leased out by the Mandodari Devi to the appellants in the year 1973-74. As pointed out earlier, even if the said document at Exhibit-K is taken as proved, it was a compulsorily registerable document in view of section 107 of the said Act of 1882 and the said document is admittedly unregistered. It was not admissible evidence as a document creating a lease in favour of the appellants. 25. As pointed out earlier, the only basis of the title claimed by the appellants-plaintiffs was a lease (Exhibit-K). Apart from the fact that the Trial Court has found that execution of the said document is not duly proved and that Mr.R.D. Mishra, Advocate, was not examined, the said document is not admissible in evidence as a document of title for want of registration. 26. As pointed out earlier, the specific contention of the appellants was that the suit was not one under the section 6 of the Specific Relief Act, 1963 and the suit was on the basis of title of the : 19 : appellants as lessees. 27. It is obvious that the appellants have not established their title as lessees in respect of the suit premises. As the appellants claimed possession as the lessees of Mandodari Devi, the learned Trial Judge has recorded a finding that the suit was not bad on account of non-joinder of their sister Sunita Bhatnagar. If the appellants were claiming title as the legal representatives of the said Mandodari Devi, the said sister was certainly a necessary party. 28. The sum and substance of what is held above is that the appellants have failed to establish their title as lessees of the suit premises. 29. The learned Trial Judge has accepted the fact that the 1st defendant was in possession and has not proved his plea of adverse possession. As the suit filed by the appellants is based on title as lessees and as they have miserably failed to prove the said title, it is obvious that the plaintiffs are not entitled to a decree for