1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4167 OF 1992 Sushila Tatyaba Samant ...Petitioner vs. Madhukar Rajaram Walawalkar & Anr. ...Respondents Mr.P.K.Dhakephalkar Sr.Advocate with Mr.Sachin Dhakephalkar for the petitioner Mr.Ambar Joshi for respondent no.1 CORAM :A.S.OKA,J. DATE : AUGUST 25, 2009 JUDGMENT : 1 The submissions were heard on the earlier date. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief.The petitioner is the original plaintiff. The second respondent is the landlord. Accoding to the case of the petitioner, she was inducted in the suit premises as a tenant with effect from July 1969. According to the petitioner, she was inducted by the second respondent and since July 1969, she has been regularly paying the rent of the suit premises to the second respondent. According to the case of the petitioner, earlier one Sakharam Tatkare was a tenant in respect of the suit premises of the second respondent and after the said tenant vacated, the petitioner was inducted as a tenant by the second respondent. 2 According to the petitioner, she was an illiterate mill hand when she occupied the suit premises in July 1969. Her 65 years old father was in a disturbed state of mind. According to her case, somewhere in the same 2 year the first respondent obtained a rent receipt for the month of June 1969 from the earlier tenant Mr.Tatkare and by striking out the name of the said tenant, he interpolated his name thereon. It is alleged that the first respondent took thumb impression of her father on a writing taking undue advantage of his mentally derailed condition. 3 The first respondent filed a proceeding under section 41 of the Presidency of Small Causes Court Act, 1882 (referred to as the said Act of 1882) against the petitioner. In the said proceeding it was contended by the first respondent that the petitioner was his licensee. A decree for ejectment was passed against the petitioner. Thereafter, the present suit has been filed for declaration that the petitioner is a lawful tenant in respect of the suit premises of the second respondent and the first respondent has no right, title or interest in respect of the suit premises. During the pendency of the suit, the possession of the petitioner was protected. The suit was decreed by the trial court by granting a declaration of tenancy and injunction restraining the 1 st respondent from executing the decree obtained by him in the proceedings under section 41 of the said Act of 1882. In an Appeal preferred by the first respondent, the Appellate Bench of the Small Causes Court interfered and has dismissed the suit. 4 The learned senior counsel for the petitioners submitted that in view of section 45 of the said Act of 1882, the suit filed by the petitioner for declaration of tenancy was maintainable in law and independently of findings recorded by the Court of Small Causes in the proceedings under section 41 of the said Act of 1882, the petitioner was entitled to maintain a suit for 3 declaration of her status as a tenant of the second respondent. Inviting my attention to the findings recorded by the Appellate Court, he submitted that there is no evidence at all to show that the first respondent was inducted as a tenant in respect of the suit premises by the second respondent. He submitted that the only evidence adduced by the first respondent is of the rent receipt for June 1969 which bears the name of the earlier tenant which is scored out and the name of the first respondent has been inserted. He submitted that the trial court had rightly passed a decree in favour of the petitioner which needs to be restored. The learned senior counsel for the petitioner relied upon further affidavit dated 22 nd September 2006 filed by the petitioner. In the said affidavit it is stated that the second respondent has executed an agreement for sale in favour of the occupants of the building in which the suit premises are situated and thereafter the occupants have formed a co-operative society. He pointed out that the said co-operative society has entered into a development agreement with a developer who has allotted temporary accommodation to the petitioner. He pointed out that the petitioner has shifted to the alternate temporary accommodation and the building has been demolished. 5 The learned counsel for the first respondent did not dispute the subsequent developments. He submitted that the issue of rights of the parties will have to be deiced as the question will be of obtaining permanent accommodation in lieu of the suit premises. He submitted that there is evidence of the writing at Exhibit-15 which is duly proved which shows that the petitioner is not entitled to claim any tenancy rights. He submitted that the first respondent also adduced evidence to show that he was accepted as a tenant by the second respondent 4 prior to July 1969 and the first respondent obtained possession from the earlier tenant Sakharam Tatkare. He submitted that the suit filed by the petitioner is collusive as is apparent from the stand taken by the second respondent on oath. 6 I have given careful consideration to the submissions. Perusal of the Judgment of the Appeal Bench of the Small Causes Court shows that the earliest document produced by the plaintiff-petitioner is of July 1969 which is the rent receipt issued by the landlord. The other documents produced by the petitioners are of subsequent dates. The Appeal Bench has referred to the rent receipt for June 1969 produced by the first respondent. The Appeal Bench noted that the said receipt is issued in favour the earlier tenant Sakharam Tatkare, but the name of the said tenant was scored out and the name of the first respondent was written in Gujrati language which has been signed by the rent collector of the second respondent. The Appellate Court has referred to the rent bills from the period from 1966 to May 1969 which were produced by the 1 st respondent. These bills were standing in the name of erstwhile tenant. The Appeal Bench has referred to the money order allegedly sent by the first respondent to the second respondent by which the rent for the period from July 1969 to December 1969 was forwarded. Therefore, the Appeal Bench proceeded to hold that the first respondent was the tenant in respect of the suit premises from June 1969 onwards. The Appeal Bench relied upon a writing which is allegedly signed by the father of the petitioner which shows that the father of the petitioner was temporarily allowed to use the premises for a limited period. 7 My attention has been invited to section 45 of the 5 said Act of 1882. In view of the said provisions, Notwithstanding the decree passed in exercise of power under section 41 of the said Act of 1882, the parties to the decree are entitled to file a suit in competent court to establish their respective title. Accordingly, the present suit for declaration of the title of the petitioner as a tenant was filed by the petitioner in a competent court under the Bombay Rents, Hotel and Lodging, Rates (Control) Act,1947 which is empowered to pass a decree of declaration. In view of section 45 of the said Act of 1882, the issue of title i.e the plea of tenancy set up by both the petitioner and the first respondent in respect of the suit premises will have to be considered on its own merits and the finding recorded in the proceeding under section 41 of the said Act of 1882 will not come in the way of competent court while deciding the issue of tenancy. 8 The petitioner stepped into witness box and stated that she has been paying the rent from 1969 to the second respondent in respect of the suit premises. She stated that she became tenant in respect of the suit premises in the year 1969. She produced and proved other documents such as electoral roll of the year 1970, rent bills etc. It must be noted here that the petitioner while adducing evidence produced 22 rent receipts from July 1969 to July 1972 issued in her favour by the second respondent. She produced a receipt for July 1969. In the cross examination she was confronted with the writing allegedly executed by her father. She stated that she was not aware whether her father has executed any such writing. The second respondent stepped into the witness box. He stated the said Sakharam Tatkare was the tenant in respect of the suit premises before the petitioner came into possession. He stated that the said Tatkare 6 left the suit premises by putting the petitioner in possession of the suit premises. He produced counter- foils of the rent receipts since 1972. He stated that the counter-foils of the earlier receipts were not preserved by him. He was shown the rent receipt for June 1969 produced by the first respondent. He stated that the name of the earlier tenant Sakharam Tatkare on the said receipt is in his own handwriting. He stated that the said name has been scored out by someone else and the name of the first respondent has been written without his consent. A suggestion was given in the cross examination by the first respondent that the said respondent had visited his grocery shop at Colaba along Mr.Tatkare for holding talks. He denied that his rent Collector Mr.Gopalrao had taken the first respondent along with Mr.Tatkare to his grocery shop. He denied the correctness of the suggestion that in June 1969, he consented to accept the rent from the first respondent and issued the rent receipt for June 1969 which is referred to above. 9 The first respondent stepped into a witness box and stated that on 29 th June 1969 that the tenancy was transferred in his name from the name of the said Sakharam Tatkare. He stated that he paid a sum of Rs. 6,000/- to the second respondent in consideration of transfer of rent bill in his name. He stated that the said transaction of transfer took place at the residence of the rent collector of the second respondent in presence of four other persons. He stated that the name of Sakharam Tatkare was already written on the rent receipt of June 1969. The said name was scored out and the rent collector of the second respondent put his initials below the correction and inserted the name of the first respondent in the rent receipt. He stated that 7 the rent for subsequent period has been sent by him by money order. In the cross examination, he came out with the case that he had paid a sum of Rs.6,000/- to the landlord at the time of transfer of rent receipt. He again added that the said Tatkare took the amount of Rs.6000/- from him at the time of transferring the rent bill in his name. He admitted that the second respondent was not a present when the amount of Rs.6000/- was paid by him. He stated that the said Tatkare paid the said amount to the 2 nd respondent-landlord. He reiterated in the cross examination that the amount was paid at the residence of the rent collector of the second respondent. He stated that he had borrowed the amount of Rs.6000/- from a society but he has no evidence to show that the society has granted him loan. The first respondent admitted that the name of Tatkare on the rent receipt of June 1969 has been scored out and the his name has been written over there. He admitted that in the written statement that he has not come out with a case that a sum of Rs.6000/- was paid by him to earlier tenant Tatkare. 10 The issue which is to be considered is whether the petitioner is a tenant of the second respondent or whether the 1 st respondent was inducted as a tenant from June 1969. The basic evidence of tenancy produced by the first respondent is the alleged rent receipt of June 1969 which is originally issued in the name of the earlier tenant Mr.Tatkare. Even according to the case of the first respondent, his name has been subsequently added by rent collector of the 2 nd respondent by scoring out the name of Mr.Tatkare. It is not his case that the corrected receipt was issued by the second respondent- landlord. In fact, the first respondent accepted that the said correction was carried out in absence of the 2 nd respondent. Admittedly after June 1969, there is not 8 even a single rent receipt issued by the 2 nd respondent in favour of the 1 st respondent. Moreover, the case of the first respondent is that he paid a sum of Rs. 6000/- to the erstwhile tenant Mr.Tatkare. It is not his case that he has paid any amount to the second respondent. The first respondent has not examined Shri Sakharam Tatkare as a witness. Therefore, except for one rent receipt at Exhibit 7, which was initially issued in the name of Mr.Tatkare, there is absolutely no evidence to show that the first respondent was inducted by the second respondent or that the earlier tenant Mr. Tatkare was permitted by the second respondent to transfer the suit premises and tenancy in favour of the first respondent. It must be stated here that the writing at Exh.15 relied upon by the first respondent has not been duly proved as the first respondent has not examined any of the witnesses who were present at the time of execution of the said document. The said document allegedly bears thumb impression of the father of the petitioner which is not duly proved. The petitioner has denied the execution of the said writing. In any case, the issue to be decided in the present petition is the issue of tenancy. The said document will become relevant if it is established that the 1 st respondent was inducted as a tenant. The second respondent stepped into witness box and stated that the petitioner was inducted by him as a tenant of the suit premises after the earlier tenant Shri Tatkare vacated the suit premises. The petitioner has produced twenty two rent receipts right from July 1969 onwards and possession of the petitioner from July 1969 is not disputed. The evidence of the tenancy adduced by the first respondent is of only one rent receipt of June 1969 and money order coupon showing that the first respondent forwarded the rent for a period of 6 months in the year 1969 to the second respondent. Thus, 9 there is no evidence to show that the second respondent had inducted the first respondent as a tenant of the suit premises in June 1969. As against this, even according to the case of the second respondent, the petitioner was inducted in July 1969. The plea of tenancy of the petitioner is supported by the second respondent as well as the rent receipts from July 1969 onwards produced by the petitioner. Even assuming that the writing at Exh.15 allegedly executed by her deceased father of the petitioner was on record, the real issue to be decided is whether the petitioner was the tenant in respect of the suit premises or the first respondent was a tenant. 11 The Appellate court has not at all considered the fact that only one rent receipt for June 1969 which is a doubtful document has been produced by the first respondent to establish his tenancy. There is no evidence of creation of tenancy by the 2 nd respondent in favour of the 1 st respondent. The rent receipt of June 1969 is admittedly a creation of rent collector of the 2 nd respondent. The authority of the rent collector to score out the name of earlier tenant and to insert the name of 1 st respondent is not established. As against this, the petitioner has produced the rent receipts issued from July 1969 onwards and the second respondent has stated that he had inducted the petitioner as a tenant in July 1969. All these factors have been glossed over by the Appellate Court. Had these factual details been considered by the Appellate Court, the view which is taken by the Appellate Court could not have been taken. 12 Now the suit premises are not in existence and therefore the only issue which survives is the issue regarding tenancy. Hence, the impugned Judgment and Decree of the Appellate Court deserves to be quashed and 10 set aside and the decree of declaration granted in favour of the petitioner will have to be restored. The decree of injunction need not be restored as now the decree passed in favour of the first respondent cannot be executed. 13 Hence, I pass the following order : i) The impugned Judgment and Order dated 5 th August 1992 is quashed and set aside and Appeal No.258 of 1982 is hereby dismissed. ii)The declaratory decree passed by the trial court dated 31 st March 1982 is restored. However, the decree of perpetual injunction is not restored as the suit premises is not in existence. iii)Rule is made absolute in above terms with no order as to costs. JUDGE