1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 282 OF 2003 1. Nagubai Namdeo Chaudhary } Age : 58 Years, Occ. Labour, } R/o : CTS No. 3022/B, } Agra Road, Dhule. } 2. Prakash Namdeo Chaudhary } Age : 35 Years, Occ. : Labour } R/o : CTS No. 3022/B, } Agra Road, Dhule. } .... PETITIONERS V E R S U S 1. Sudam Baburao Bagul } Age : 43 Years, Occ. Business, } R/o : Usagali, Dhule. } 2. Sau. Shashikala Sudam Bagul } Age : 38 Years, Occ. Household } R/o : Usagali, Dhule. } .... RESPONDENTS Mr. S.P.Brahme, Advocate for Petitioner. Mr. N.L.Choudhari, Advocate for Respondent nos. 1 & 2. [ CORAM : S.S.SHINDE, J. ] DATE : 07/10/2009. 2 JUDGMENT : 1. This Writ Petition is directed against the final Judgment and Decree dated 25/09/2002 passed by the 3rd Additional District Judge, Dhule in R.C.A. No. 146 of 2000. 2. The back-ground facts of the case are as under. The respondents herein, who are the original plaintiffs, had initially claimed to be the owners of western side premises admeasuring 886.89 Sq.M. Out of CTS No. 3022 situated at Dhule on the basis of purchase of the same from the original owner Smt. Tulsabai Shivram Chaudhari for Rs. 1,15,000/- by way of registered sale deed dated 31/7/2007. In the Appeal, the original plaintiffs filed an application Exh. 10 for amendment in the plaint by contending that during the pendency of the Suit, CTS No. 3022/B has been allotted to the portion, which has been purchased by the plaintiffs and accordingly the said application came to be allowed. In view of the said amendment, the original plaintiffs, who are respondents herein have claimed to be the owners of CTS No. 3022/B admeasuring 90.5 Sq.M. According to the plaintiffs, it is the suit property and they have purchased the same for their own residence and it was in dilapidated condition and its 2/3rd portion was already collapsed. After the purchase of suit property by the plaintiffs, they 3 informed to the defendants for vacating the said premises. The Municipal Council also served notice to the defendants under Section 195 (3) of Maharashtra Municipalities Act, to remove the building on the suit property as it is in dilapidated condition. It was the case of the respondents/original plaintiffs that the defendants, who are the petitioners herein, have not taken any steps and, therefore, the plaintiffs had to approach Azadnagar police station to obtain the security and also informed the Municipal Council. It is the case of the original plaintiffs that the defendants have not effected any repairs of the suit property and the tick wood and bims of the suit property have been taken away by them and they have disposed of the same and as such they are residing in the dilapidated and dangerous condition of the suit property. Therefore, the plaintiffs are entitled to claim the possession from the defendants. According to the plaintiffs, in the beginning, the suit property was taken on monthly rent by Sonu Hiraji and Namdeo Hiraji. Thereafter, Sonu Hiraji Chaudhary constructed a plot and vacated the premises. Out of six sons of Namdeo Hiraji, one son resides in Gujarath, his another son is dead and his rest of the three sons reside at else where at Dhule. Only the defendants occasionally reside in the suit property and defendants are also residing at else where at Dhule but they have retained the possession of the suit property with ulterior motive and the said property has been completely collapsed. The plaintiffs also claimed possession of the suit property on the ground that 4 the defendants have obtained the tap connection illegally and without permission of the landlord. The defendants have not paid the water taxes and the amount of Rs. 2,436/- is due against them. It is further contended by the original plaintiffs that rent of the suit property is Rs. 12/- per month and since the month of Diwali of 1989, the defendants are in arrears of rent, education cess and other taxes. They are defaulters and in arrears of Rs. 1080/- towards the rent and Rs. 44/- towards the education cess. They are defaulters and on this ground the plaintiffs claimed arrears of rent vacant possession of the suit premises. It was further contended by the plaintiffs that they have purchased the suit property and as size of their family is being increased and their sons became major, the plaintiffs asked the defendants to vacate the suit property. However, dispute of the assurance with the ulterior motive, they did not vacate the suit property. Therefore, the plaintiffs have terminated the tenancy rights of the defendants. On 15/4/1988 notice was issued to the defendants, which was replied by them, but they have not vacated the suit property. Therefore, the plaintiffs have filed the suit for possession, arrears of rent, education cess, notice charges, etc. Lastly, the plaintiffs have prayed for possession of suit property on the above grounds, the arrears of rent, education cess and other charges. 3. The petitioners herein, who were original defendants, resisted the claim of the plaintiffs vide their Written Statement at Exh. 5 12. They have stated that the suit property is not owned by the plaintiffs and the defendants are not informed by the original owner Tulsabai about the alleged transfer. The plaintiffs have not filed the sale deed on the record at the time of institution of the suit till today. The suit property was taken on rent by Namdeo Hiraji Chaudhary and after his death, all his legal representatives became tenants of the suit property. The plaintiffs are having knowledge of the said legal representatives of Namdeo Hiraji but they have not made parties to them. Therefore, the suit suffers for non joinder of necessary parties. It is further denied by the defendants in Written Statement that the suit property is in dilapidated condition. It is contended by the defendants that the notice Under Section 195 (3) of Maharashtra Municipalities Act ( for short ‘ the Act ’ ) was issued by using influence to pressurize defendants and the said notice is illegal. Defendants have given reply to the plaintiffs. But, without considering the said reply, they have filed the false Suit. It is further contended by the original defendants that they are in possession of suit property for more than 50 years and they are the old tenants. The owner of the suit property namely Tulsabai Chaudhary was trying hard to get the suit property from the defendants illegally and and she was harassing them. They have stopped accepting the rent from the defendants with some ulterior motive. Therefore, the defendants have deposited the rent of Rs. 9/- per month in the post office at Dhule. They were and are ready and willing to pay 6 the rents. They have not committed any default in payment of the rent. The owner Tulsabai never effected any repairs of the suit property and the suit property was being repaired by the defendants and they have taken the necessary care to keep the suit property in good condition. Despite of the necessary care taken, the suit property being on the ground floor, due to percolation of rain water through roof, the wooden beams are damaged, so also the plaster of the walls was removed. The original land lady Tulsabai unnecessarily caused damage to the suit property with a view to evict the defendants from the suit house. It is further stated that the original land lady and plaintiffs have caused obstruction to the defendants in the work of repairs of the suit property. Therefore, R.C.S. No. 308 of 1994 was filed by the defendant no. 2 and his father Namdeo Hiraji against Tulsabai Shivram Chaudhary and others. One son of the defendant is in Gujarath but he also used to come to Dhule and all the applicants are the heirs of Namdeo Hiraji along with their families are residing in it. There is no other property at Dhule in their possession and they are in need of the suit property. The original defendants have denied the right of the plaintiffs to demand the amount of rent and education cess from them on the ground that the owner of suit property namely Tulsabai Chaudhary have not informed them that they have executed any sale of the suit property in favour of the plaintiffs. According to the defendants, the plaintiffs are not the owners of the suit property and, therefore, they have no right to terminate the tenancy of the 7 defendants. 4. The learned 5th Jt. Civil Judge (J.D.), Dhule framed Issues at Exh. 13. The plaintiffs and defendants have adduced oral and documentary evidence and considering the oral and documentary evidence adduced by the parties, the Court held that the plaintiffs failed to prove that they are the owners of the suit property out of CTS No. 3022/A. However, the Court held that the plaintiffs have proved the condition of the suit property as dilapidated and not suitable to reside, the defendants are defaulter in paying the rent of the suit property, the defendants have no separate accommodation other than the suit property. The Court also held that the Suit is not hit by the non joinder of necessary parties. Consequently, the learned lower Court has dismissed the Suit by holding that the relationship between the parties to the Suit as landlord and tenant is not established. 5. Being aggrieved by the dismissal of the Suit by the lower Court, the original plaintiffs preferred Appeal before the appellate Court stating that the trial Court ought to have considered that the defendants admits to be the tenant of the western portion of CTS No. 3022 and, therefore, there was no dispute about the suit property for rejecting the title of the plaintiffs. The tenant has denied the title of the landlord and as such he is bound to be evicted as per Section 11 of Evidence Act. 8 6. The original defendants i.e. present petitioners herein have filed cross objection before the appellate Court and thereby contended that the lower court has committed error in holding that the suit property is in dilapidated condition, the defendants are defaulters and the Suit is not hit by the voice of non joinder of necessary parties and findings of the lower court are erroneous and improper. 7. The lower appellate Court has framed as many as six points for determination and recorded the findings thereon. The lower appellate court allowed the Appeal filed by the original plaintiffs i.e. respondents herein. 8. Being aggrieved by the Judgment and Order passed by the 3rd Additional District Judge, Dhule, the present Writ Petition is filed by the petitioners. 9. The learned counsel appearing for the petitioners submitted that the petitioners herein are the tenants of the suit premises for more than 50 years and they are regularly paying rent of the said premises per month. The said premises were taken for residential purpose. It is submitted that the lower appellate court committed perversity and illegality in holding that the respondents are the owners and landlords of the suit house. According to the learned counsel, the landlady was Tulsabai, the petitioners were not aware of 9 the sale transaction between Tulsabai and respondents. The tenancy was not attorned, hence respondents has no locus standi to file Suit for eviction under Bombay Rent Act. It is further submitted that the respondents, who are the original plaintiffs failed to adduce sufficient evidence on record to prove their ownership. The respondents did not produce sale deed on record. No reasons are assigned in not producing title document. The learned counsel invited my attention to the provisions of Section 91 of the Evidence Act, which read thus, “ When the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the documents itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained ”. Therefore, the learned counsel would submit that the evidence city survey extract at Exh. 65 and affidavit of Tulsabai on Exh. 92 is inadmissible for the reason that the said affidavit was not available for cross examination. Tulsabai did not enter the witness box. Her version stated in affidavit was not tested to the touch stone of cross 10 examination. City Survey extract Exh. 65 has only presumptive value. It is not title document and they do not confer any title. The Appellate Court failed to consider that the respondents are not entitled to the decree of eviction in absence of their title document. In support of this contention, learned counsel relied in case of Sukhlal V/s Harish reported in 1994 (5) Bom. C.R. 266. 10. It is further submitted that the appellate Court ought to have dismissed Suit on the ground that in the original plaint, the subject matter was described as 3022/A. It was changed to 3022/B vide amendment. The entire subject matter was changed. The Suit is liable to be dismissed for identification of property. It is pertinent to note that in notice, the subject matter is described as City Survey No. 3022/A. The order granting amendment to plaint passed on 26/4/2001 below Exh. 10 is void and illegal. The validity of the said order can be considered by this Court. Though, the petitioners have not amended the Written Statement, the amendment made in the plaint can not be said to be legal and effective. The lower appellate Court erred in holding that the respondents are owners of City Survey No. 3022/A, 3022/B and it is also error to note that the petitioner admitted the boundaries, hence there was identification. It is further submitted that it is perversity to hold that the petitioners were aware that respondents were landlords. The findings recorded in para no. 22 is based upon conjunctures and surmises. There is no positive evidence to indicate 11 that the petitioners were aware of the sale transaction. Both the courts below committed gross error in finding that the suit premises was needed for immediate demolition. There is no evidence on record to show that the Municipal Council/Officer had issued notices of demolition of premises under Section 195 (3) of the Act. Those notices were not placed on record. In the absence of said primary evidence, it is not permissible to draw conclusion that the premises directed to be demolished. It is further submitted that the deposition of the witness Prakash recorded in R.C.S. No. 308 of 1994 can not be used to infer that the suit house is in dilapidated condition. It is further submitted that the petitioners are not defaulters. The petitioners had deposited arrears of rent on 24/2/2003. Before that, they had deposited the rent in the post office. On 10/2/2002 also, some rent was deposited in the Court. Hence, the petitioners were not defaulters. According to Section 12 of Bombay Rent Act, if the tenant is ready and willing to pay the amount of rent, then landlord can not evict the tenant on sole ground. The learned counsel invited my attention to the pleadings in the petition, grounds thereof and submitted that this Writ Petition deserves to be allowed. The learned counsel invited my attention to the reported Judgment of this Court in case of Ganpati Munjaji Renge V/s State of Maharashtra & Others reported in 1998 (2) Mh. L.J. 845 and submitted that it is settled law that the mutation entries are only for the 12 purpose of enabling the State to collect the land revenue from the person in possession but it does not confer any title to the land. The title would be derived from an instrument executed by the owner in favour of an alience as per Stamp Act and registered under Registration Act . The learned counsel further invited my attention to the reported Judgment of this Court in case of Shrikant R. Sankanwar & others V/s Krishna Balu Naukudkar reported in 2003 (2) Mh.L.J. 276 and submitted that it is well settled that the entries in the revenue records are basically for revenue purposes and do not by themselves constitute title to the property in favour of any person. The learned counsel further invited my attention to the reported Judgment of this Court in case of Sukhlal Chunilal Chagani & another V/s Harish Suvarne & another reported in 1998 (5) Bom.C.R. 266 and invited my attention to para no. 4 of the said Judgment, which reads thus, “ The learned counsel appearing for the petitioners urged before me that as in the sale deed, there is a recital that by agreement of sale, right to recover the rent from 1/4/1976 was given to the landlords, the landlords were entitled to recover the rent from 1/4/1976. It is however to be seen here that firstly the document of agreement of sale is not produced on record and secondly, in view of the provision of Section 109 of Transfer of Property Act, it is crystal clear that a transferee is not entitled to arrears of 13 rent due before the date of transfer and therefore, the amount of rent due from the tenant for the period before the date of transfer can not be recovered as an arrears of rent and, therefore, a decree of eviction can not be passed against the tenant under section 12 of the Bombay Rent Act, for non payment of those dues. I find no fault with the findings recorded by the Appellate Court ”. 11. Therefore, learned counsel would submit that the respondents have not placed on record the vital document in the nature of sale deed and in absence of sale deed on record, the appellate court was not correct in holding that the respondents are owners of the said property. The learned counsel further submitted that the respondents, are not entitled to recover rent from the petitioners. The learned counsel invited my attention to each and every ground taken in the Writ Petition and written arguments filed on record and submitted that the Writ Petition deserves to be allowed. 12. The learned counsel appearing for the respondent submitted that the present petitioners filed Regular Civil Suit No. 308 of 1994 for perpetual injunction and permit to carry out repair of the suit property ( house property ) against the original owner Smt. Tulsabai and others. On 31/7/1997, as respondents herein have purchased suit property from the original owner i.e. Tulsabai and others by way of 14 registered sale deed. Thereafter, the respondents became party respondent in R.C.S. No. 308 of 1994. On 31/3/1999, R.C.S. No. 308 of 1994 came to be dismissed by the trial Court. Thereafter, present petitioners have filed R.C.A. No. 52 of 1999 and same also came to be dismissed. Thereafter, the present petitioners have filed Second Appeal No. 753 of 2007 before this Court and on 17/7/2009 this Court dismissed said Second Appeal NO. 753 of 2007 at the stage of admission, considering that, the suit property is totally collapsed and not suitable to reside. 13. It is submitted by the learned counsel for the respondents that on 31/7/1997, the respondents have purchased the suit property from original owner Tulsabai and others by way of registered sale deed. As the suit property was in dilapidated condition and 2/3rd part of the said premises was already destroyed, at the same time Municipal Council also served notice U/s 115 (3) of the Act and the petitioner was also defaulted in paying regular rent, therefore, the present respondents filed Civil Suit No. 124 of 2008 for possession and arrears of rent. The petitioners herein appeared in the said Suit and the trial Court on 31/11/2000 considering that the plaintiffs (present respondents) have miserably failed to prove that they became owner of CTS No. 3022/A or CTS No. 3022/B. The plaintiff also failed to prove that landlord of suit property CTS No. 3022/A, within the meaning of definition (landlord), come under Bombay Rent Act. It is further 15 submitted that the trial Court has framed Issues, wherein Issue nos. 2 and 3 and default in paying rent are held in favour of present respondents. The trial Court only dismissed Suit in respect of Issue no. 1. 14. In R.C.A. No. 146 of 2000, the present respondents, who are the original plaintiffs have filed an application at Exh. 10 for the amendment in the plaint by contending that during the pendency of the Suit, CTS No. 3022/B has been allotted to the portion, which has been purchased by the present respondents and accordingly the said application came to be allowed. In view of the said amendment, the original plaintiffs have claimed to be the owner of the CTS No. 3022/B admeasuring 90.5 Sq. M. The plaintiffs have carried out amendment in the plaint as paragraph 1-A of the plaint in the Appeal. It is further submitted that after the present respondents have carried out the amendment in the plaint, in the Appeal, the defendants have not made any amendment in the Written Statement and denied the contentions of the plaintiff that the suit property bearing CTS No. 3022/A. The Appellate Court has framed Issues and allowed the Appeal of the respondents and directed the petitioner to deliver vacant possession of the suit property described in plaint para no. 1-A. It is submitted that the suit property is not suitable for residence and same is totally collapsed. The learned counsel further submitted that the provisions 16 of Section 109 of the Transfer of Properties Act are not applicable in the instant case. The learned counsel further submitted that in order to prove the ownership, Index II of the sale deed is produced on record, which is a public document, the City survey extract is also produced on record, the affidavit of original land lady is also produced on record and taking into consideration all these documents, the appellate court has rightly held that the respondents are the owners of the suit property. The city survey extracts is prima facie proof of the ownership. It is further submitted that Index II is of the sale deed. The learned counsel invited my attention to the reported Judgment of this Court in case of Wasudeo S/o Jagoba Wabhitkar V/s Vilas S/o Tukaram Tonge and others reported in 2006 (2) Mh.L.J. 625 and submitted that even production of certified copy of sale deed – Index II is sufficient to hold that it is proof towards ownership. It is further submitted that the appellate court has given proper reasons for allowing the prayer of the petitioner and holding that the petitioners are owners of the said property. The learned counsel further submitted that so far other Issues are concerned, both the courts have recorded concurrent findings on facts and held that the suit property is in dilapidated condition, the Suit is not hit by non joinder of necessary parties and on other Issues also, both the Courts have concurrently held in favour of respondents. Learned counsel invited my attention to the findings recorded by courts below over Issues framed for determination and submitted that no interference is warranted under extra ordinary 17 jurisdiction of this Court in the present case. The learned counsel further submitted that the petitioners are in arrears of the rent of suit premises from 31/7/1997, from the date on which the property is purchased by the present respondents. It is also mentioned in the sale deed that henceforth, rent should be recovered by the respondents from the petitioners and in pursuance to that,