KBP 8604-03.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8604 OF 2003 Ashok Ranhod Shaha ..Petitioner Vs. President, Acharya Done Vidyarthi Girhha Nashik and ors. ..Respondents ......... Mr.P.B.Shah, for petitiner. Mr.S.B.Shetye, for respondent No.1 to 16. ......... CORAM : A.S.OKA, J.. DATE : 24 th August, 2009. P.C. : 1] Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents. The respondents are the original defendants. A suit for declaration of tenancy and injunction was filed by the petitioner. The Respondent No.2 is a public trust duly registered under the Bombay Public Trusts Act, 1950. The respondent Nos.1 and 3 to 16 are the trustees of second respondent trust. The second respondent- trust is running a hostel for school children. According to the case of the petitioner, in the year 1979 the suit premises, more particularly described in paragraph 3 of the plaint, was let out by the 2 nd respondent to the petitioner on monthly rent of Rs.220/-. A reference has been had been made to the agreement got executed from the petitioner by respondents. It is contended that the petitioner is a tenant and the respondents are landlords. A reference has been made to the correspondence between the parties and it was contended that the respondents were trying to dispossess the petitioner. Apart from the KBP 8604-03.doc 2 declaration, there was a prayer made for perpetual injunction for protection of possession of the petitioner. 2] The suit was contested by the respondents by filing a written statement. It was contended that for the benefit of school children residing in hostel run by second respondent, it was decided to construct a shed admeasuring 15 feet x 32 feet for the purpose of running a canteen. It is contended that the said premises was given to the petitioner on leave and license basis for a period of 11 months for the purpose of running a canteen. It was submitted that the petitioner was inducted as a licensee. It was contended that after the expiry of the period of the agreement, the respondents were to appoint another contractor for running the canteen. The trial Court partly decreed the suit by restraining the respondents from causing obstruction to the petitioner’s possession until the eviction of the petitioner from the suit premises by following due process of law. The trial court held that the petitioner failed to prove tenancy rights in respect of suit premises and accepted the case made out by the respondents that the petitioner was allowed to occupy the suit premises as a licensee to enable him to run a canteen in the suit premises. The petitioner preferred an appeal. The appellate Court has confirmed the decree passed by the trial court. 3] The learned Counsel appearing for the petitioner has taken me through the oral evidence and the documents on record. He submitted that admittedly the respondents issued rent receipts in favour of the petitioner from time to time. He placed reliance on rent receipts at exhibits 53, 60, 61. He submitted that the fact that the rent receipts were issued has been admitted by the witness examined by the respondents. He submitted that the appellate court has not even considered the oral testimony of the witnesses. The learned counsel appearing for the respondents supported KBP 8604-03.doc 3 the impugned judgment and decree. 4] I have carefully considered the submissions. The courts below recorded concurrent findings that the petitioner has failed to establish his tenancy rights. The petitioner stepped into the witness box. He has relied upon the rent receipts. In the cross-examination the petitioner denied to have executed any agreement relating to canteen. He denied to have submitted a tender as per the notice published by the respondents. In the cross- examination he was confronted with the letter dated 25 th July 1981 at exhibit 84 sent by him. The petitioner accepted to have written the said letter. In the said letter a request was made by the petitioner for extension of time and offered to pay an amount exceeding of Rs.220/- pm provided by someone else was willing to offer more than Rs.220/- per month. His attention was also invited to the leave and license agreement which is at exhibit 85. He admitted his signature thereon as a licensee. He admitted that the subsequenty, quotations were invited by the respondents and he admitted that the letter dated 11 th August, 1881 was written by him to the respondents. Perusal of the said letter shows that the petitioner has stated that he was unable to vacate the said premises as he was carrying on business for quite some time. He stated in the letter that he was unable to vacate unless he was able to find some alternative. 5] Initially the petitioner came out with the case that he had not executed a leave and license agreement but he accepted in the cross-examination that he had executed such an agreement. The respondents have also placed on record the extract of resolution passed by the managing committee of the second respondent trust by which it was resolved that the publication of advertisement be made for inviting offers for conducting of canteen for a period of eleven months. The said resolution also shows that it was never intended by the respondents to create a tenancy in favour of a person who KBP 8604-03.doc 4 was to run the canteen. 6] The reliance placed on so called rent receipts will have to be considered. There are four receipts produced on record by the petitioner. It is true that in receipt the words “canteen rent” have been used. However, mere reference in the receipts to “rent” by itself is not sufficient to hold that the petitioner was inducted as a tenant unless there is an evidence on record to show that there was an intention to create a tenancy in favour of the petitioner. The second respondent is a registered public Trust. The resolution passed by the respondents shows that a licence was to be executed for eleven months for running the hostel canteen. The execution of leave and license agreement by the petitioner has been admitted. In the cross-examination, various letters written by the petitioner have been also admitted by him. The appellate court has referred to the correspondence made by the petitioner himself and has come to the conclusion that what is stated by the petitioner therein is contrary to his plea that he was a tenant and on the contrary what was contended by the petitioner in the letters was that he was unable to vacate the premises due to various difficulties faced by him. 7] There are concurrent findings of fact recorded by the court below holding that the petitioner has failed to establish his tenancy rights. It is therefore difficult to find fault with the concurrent findings of the facts recorded on the basis of documents which are admittedly executed by the petitioner. The documents executed by the petitioner completely defeat the theory of the petitioner that he was inducted as a tenant. Therefore, no case is made out for interference. Writ petition is rejected. ( A.S.OKA, J. )