1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Letters Patent Appeal No. 1/2009 in W.P.No.5979/2005 Kripal Singh s/o Santa Singh Jagdeo vs.M/s Patel Service Station ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. CORAM : A. P. Lavande & P.D.Kode,JJ DATE OF RESERVING : 31.07.2009 DATE OF PRONOUNCEMENT: 05.08.2009 Heard Mr. R.S.parsodkar, learned counsel for the appellant and Mr. S.S.Voditel, learned counsel for the respondent. 2. By this letters patent appeal, the appellant takes exception to the Judgment and order dated 3.12.2008 passed by the learned Single Judge in Writ Petition No. 5979/2005 dismissing the petition filed against the Judgment and decree dated 16.07.2005 passed by the Fourth Ad hoc Additional District Judge, Nagpur in Civil Appeal No. 409/2001 upholding the Judgment dated 12.2.2001 delivered by the Judge Small Causes Court in Civil Suit No. 341/97 decreeing the suit of the present respondent for eviction of the appellant and directing 2` him to hand over the possession of the suit premises. The suit premises consist of Dhaba run by the appellant. 3. The respondent filed the suit against the appellant for non-payment of rents after giving notice under Section 106 of the Transfer of Property Act. According to the respondent, initially rent was Rs. 300/- p.m. which was enhanced to Rs. 500/- p.m. and since the appellant did not pay the rent the suit for eviction was filed. The learned Small Causes Court decreed the suit. Appeal preferred by the appellant was dismissed. The writ petition preferred by the appellant was also dismissed. 4. Mr. Parsodkar, learned counsel for the appellant submitted that the suit premises are situated in the property bearing Survey No. 86 and the respondent is a tenant in respect of Survey No. 89 and as such respondent has no title in respect of the suit premises and as such the respondent is not entitled to seek eviction of the suit premises. According to the learned counsel, the findings given by the two courts below as well as by the learned Single Judge that the appellant is a tenant of respondent and that he has not paid the rent to the respondent are perverse inasmuch as the respondent is not entitled to recover any rent from the appellant in respect of the suit 3` premises. Learned counsel further submits that Section 116 of The Evidence Act has been wrongly invoked by the Court below and the learned Single Judge. In support of his submission, Mr. Parsodkar relied upon the Division Bench Judgment of this Court in Stanley Parker Jones vs. Bansraj Laltaprasad Mishra (2001(2) Mh.L.J., 675. 5. Per contra Mr. Voditel, the learned counsel for the respondent submitted that the jurisdiction to entertain letters patent appeal is discretionary and the petition filed by the respondent though styled as the petition under Articles 226 and 227 but in fact the petition was under Article 227 of the Constitution of India and as such the present appeal is not maintainable. Without pre judice to this submission, Mr. Voditel submitted that the findings of fact recorded by both the courts below as well as by the learned Single Judge are based upon proper appreciation of factual and legal position and as such cannot be faulted. The learned counsel further submitted that the appellant himself has admitted that it was the respondent who had put him in possession as tenant of dhaba and as such appellant is not entitled to challege the title of the respondent in terms of Section 116 of the Evidence Act as held 4` by both the courts below and the learned Single Judge. According to Mr. Voditel, the Judgment in the case of Stanley Jones (supra) is not applicable and has been rightly distinguished by the learned Single Judge. The learned counsel further submitted that no case has been made out for interference with the Judgments passed by the two courts below as well as by the learned Single Judge. Mr. Voditel relied upon the following judgments. 1. Sushilabai Laxminarayan Mudliyar and others vs. Nihalchand Waghajibhai Shaha and others. (1993 Supp (1) Supreme Court Cases,11). 2. Kesharlal H. Pardeshi vs. Vithal S. Patole (dead) by LRS. (2005) 10 Supreme Court Cases, 249. 6. Having considered the rival submissions and having perused the record, we are of the considered opinion that appeal preferred by the appellant has absolutely no merit. The learned Single Judge in paragraph no.2 of the Judgment made a reference to the evidence of the appellant tendered in Regular Civil Suit No. 341/91 in which he clearly admitted that initially he used to pay rent of Rs.300/- p.m. and subsequently Rs.500/- p.m. to the respondent. It is the case of the appellant that he came to know that the respondent had no title to the suit property and, therefore, he gave notice dated 28.4.1997 to the 5` respondent- plaintiff. According to the appellant, respondent did not own the property in possession of the appellant and, therefore, Section 106 of the Transfer of Property act was not attracted. We find no merit in the submissions of Mr. Parsodkar that the ratio laid down in the case of Stanley Jones (supra) is applicable in the present case. In the said case it has been held that it is open to the tenant to show that since inception of the tenancy title of the land- lord came to an end. In the present case the appellant has not been able to establish that the respondent has lost title after the lease was created in favour of the appellant. This being the position the Judgment in the case of Stanley Jones (supra) is of no help to the appellant. In our considered opinion both the courts below as well as learned Single Judge have rightly held that since the appellant was tenant of the respondent he was not entitled to challenge the title of the respondent in terms of Section 116 of the Evidence Act. Both the courts below as well as learned Single Judge have correctly held that the respondent is entitled to the possession of the suit premises. We do not find any jurisdictional error or illegality having been committed by the learned Single Judge or by the two courts below while passing impugned Judgments. We do not deem it necessary to go into 6` the issue as to whether letters patent appeal is maintainable inasmuch as the petition filed by the appellant was styled under Articles 226 and 227 of the Constitution of India and the learned Single Judge has not given any finding that the petition was under Article 227 of the Constitution of India only. 7. In view of the above, we find no merit in the present appeal. Hence, the appeal is rejected. Interim order dated 15.1.2009 stands vacated. C.A.Z.No. 7/2009 in LPA No.1/2009 (Kripal Singh Santa Singh Jagdeo vs. M/s Patel Service Station) and C.A.No.8/2009 in LPA No.1/2009:(Shri KripalSingh Santa Singh Jagdeo vs. M/s Patel Service Station) In view of the disposal of the appeal, the applications stand disposed of. JUDGE JUDGE patle 7`