1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.82 OF 2007 1 Smt. Sitabai Sitaram Ansurkar 69 years, Occ: Household, 2 Shri Narayan Sitaram Ansurkar Age 47 years, Occ:Business 3 Shri Ajit Sitaram Ansurkar Age 42 years, Occ: Labourwork 4 Sou. Suman Gurunath Tamhankar @ Suman Ajit Ansurkar Age 45 years, Occ: Household, No.1, 3 and 4 R/o Manik Chowk, Vengurla, No.2 R/o. of Camp Bhatwadi, Kinlana, Vengurla, Sindhudurg ...Appellants. v. Shri Ramesh Laxman Mestri, Age 47 years, Occ: Service, R/o. Manik Chowk, Vengurla, Tal: Vengurla, Dist. Sindhudug, Through Power of Attorney, Kum. Mandakini Laxman Mesri, Age 48 years, Occ: Household, R/o. Manik Chowk, Vengurla, District: Sindhudurg ...Respondents. Mr. A.G.Kundekar, adv. For the Appellants. Mr. G.N.Salunke i/by Prashant Pandit, advs. For the Respondent. CORAM : J.H. BHATIA, J. DATED : 30th September , 2009 ORAL JUDGMENT: 1 Appeal is admitted on following substantial questions of 2 law: “(a) Whether the Lower Appellate Court was right in holding that the defendant was not a tenant of the suit house located within the municipal limits of Vengurla town and (b) If the defendant is held to be a tenant, whether the plaintiff was required to file a suit under the Bombay Rent Act ?” 2 To state in brief, plaintiff/respondent filed Regular Civil Suit No.50/2000 against the defendants, who are the present appellants for possession. The suit house consists of two rooms and one otla or platform in front of the house. The suit house is a part of the house bearing municipal house no.1340 (New No.143/7) situated within the limits of Vengurla Municipal Council. The suit house originally belonged to Gurunath Anant Ghurye and Ramakant Anant Ghurye, sons of Anant Ghurye and Sudha Anant Ghurye. Plaintiff claim to have purchased the property from its owners under the registered sale deed dated 23rd September, 1998 and accordingly, their names have been recorded. According to the plaintiff, defendants had encroached upon the Western portion of the house, which is suit property and they are in possession of the same as trespassers. Earlier landlady Sudha had issued notice to them on 30.3.1998 through her advocate and demanded possession. However, 3 defendants took false plea of being tenants. After purchasing the property, plaintiff also issued notice dated 24.3.2000 to the defendants to vacate the premises and to hand over the possession to him but in vain. Therefore, he filed suit for possession on the basis of his title. 3 Defendants filed written statement Exhibit 24 and contended that one Janibai, mother of the defendant no.1 Sitabai, was inducted as tenant in the suit premises. Initially rent was agreed to be Rs.2/-. It was enhanced to Rs.5/- in 1980 and it was further enhanced to Rs.10/- in the year 1990. Defendant nos.2 and 3 are sons of the defendant no.1 and grandsons of the deceased Janibai. They have been residing in the suit house since 1950. They denied the story of trespass or unauthorised occupation on the same. 4 The trial Court framed several issues and after hearing the evidence of both the parties came to conclusion that plaintiff is the owner of the suit property as he had purchased the same from the previous owners. However, the trial Court came to conclusion that the defendants are in possession for long time as tenants and, therefore, story of forcible possession or trespass was rejected. In view of this, suit came to be dismissed. Plaintiff preferred Regular Civil Appeal No.209 of 2005. The First Appellate Court came to conclusion that defendants are in 4 possession for long time but there is no material to show that they are in occupation as tenants and in view of the fact that plaintiff has title over the property as owner and the defendants have failed to prove that they are the tenants, they have no legal right to continue there and plaintiff is entitled to decree for possession on the basis of his title. As such, suit for possession was decreed by allowing appeal. Hence, the Second Appeal by the original defendants. 5 Heard the learned counsel for the parties and perused the record and proceeding. The learned counsel for the defendants/appellants vehemently contended that the defendants are the tenants in the suit premises and as the property situated within the local limits of Vengurla Municipal Council to which Maharashtra Rent Act , 1999 is applicable, for eviction of the tenant, it is necessary to issue necessary notice for termination of the tenancy on the grounds prescribed in the Rent Act and the proceedings for eviction could be filed before the Rent Court under the Maharashtra Rent Act and not before the Civil Court. According to him, as the suit was not filed under the Rent Act after terminating tenancy , the trial Court did not have jurisdiction and, therefore, suit was liable to be dismissed. It is in view of this plea that the above referred two substantial questions of law were raised. The learned counsel for the 5 respondent/plaintiff contended that there is no material, oral or documentary evidence to establish that the defendants are in occupation of the premises as tenants. According to him, mere long possession of the defendants would not be sufficient to dismiss the suit of the plaintiff for possession based on the title particularly when there is no dispute about title of the plaintiff over the suit property. 6 There is concurrent findings of both the Courts below that plaintiff is the owner of the suit house as he has purchased the same from the earlier owners under the registered sale deed dated 23rd September, 1998. It appears that the plaintiff was residing in a house just adjoining the suit property even prior to purchase of this house. On behalf of the defendants, defendant no.2 Narayan and two neighbours were examined to prove long possession of the defendants over the suit premises. They also produced several documents, which have been discussed by the trial Court as well as the First Appellate Court. Record reveals that the present plaintiff had filed Regular Civil Suit No.32/83 against the defendants in respect of dispute about water from a well on the said land. It indicated that prior to 1983, defendants were residing in the said premises. Exhibit 72 is a certificate issued by the Chief Officer of the Municipal Council showing that one Sitaram Ansurkar, husband of the 6 defendant no.1 and father of the defendant nos.2 and 3 were residing in the municipal house no.1340 for about 20 to 25 years. There is no dispute that the municipal house no.1340 is the old number of the same property and the suit premises are part of that house. This certificate was issued on 27.9.1979 which indicates that Sitaram and his family members were living there for about 25 years prior to issuance of this certificate. Exhibit 71 is the copy of the electrol roll showing that Sitaram Ansurkar , defendant no.1 Sitabai and their daughter Kashibai were residing in house no.92/7 in ward no.7. Record also reveals that during 1976 to 1980 certain chapter cases were registered against Sitaram Ansurkar and notices were issued under Section 111 of the Cr.P.C. The address was shown as Vengurla Manik Chowk. This record also goes to show that in 1976 or so, defendants were residing in the same house. There are receipts about the payment of electric charges to the M.S.E.B. by Sitaram Ansurkar to show that since 1979 there is electric meter in the name of Sitaram Ansurkar in the suit premises and they are using the electric power. Taking into consideration this material, there is no difficulty in holding that the defendants are residing in the suit premises for a very long period and may be they are in possession for 40 to 50 years before the suit was filed. 7 7 About the tenancy, except oral testimony of the defendant no.2 Narayan, there is no evidence. Even though the defendants claimed that they are in possession of the suit premises since 1950 as tenants, they could not produce single document about the payment of rent or showing agreement of lease to the landlords and their family. Defendants produced only one document purporting to be rent receipt issued by the Gurunath Ghurye and Annapurna Ghurye . It is a small chit on a plain paper, which purports to be an acknowledgment that the rent upto 31st May, 1963 was received from Janibai resident of Manik Chowk, Vengurla and purports to be signed by Gurunath. This document nowhere shows how much amount was paid towards the rent, what was the monthly rent, for how much period and for what period rent was paid. Matter of acknowledgment appears to have been written in different handwriting from the handwriting of the person, who had signed it. The learned First Appellate Court noted that neither scribe of this document was examined nor Gurunath, who had allegedly signed this document was examined . No witness was examined from the family of landlords. This document was not even prepared and signed in presence of the defendant no.2 Narayan. Defendant no.2 Narayan was aged about 40 years, when the suit was filed in the year 2000. Document Exhibit 115 8 purports to be of 1963. It means Narayan was child aged about 3 years at that time. Therefore, he could not have personal knowledge about execution of this document. Thus, there is no reliable evidence to prove that this document was executed by Gurunath. Thus, genuineness of this document is not established. 8 First Appellate Court noted that from July, 2000, i.e, after filing of the suit by the plaintiff, certain amount was remitted by the defendants towards the rent by money orders and those money orders were refused by the plaintiff. First Appellate Court rightly noted that these money orders were issued only to create evidence about the tenancy. If the defendants or Janibai were occupying premises as tenants, they must have paid rent and they must have some receipts with them to prove the same. However, in spite of their alleged long possession for about 50 years, they could not produce single receipt indicating that they were paying rent and they were tenants. In view of this, the First Appellate Court came to conclusion that defendants had failed to prove tenancy over the suit premises. It is difficult to find any fault with its findings. Long possession might be unauthorised occupation or might be as licensee. Material fact is that defendants nowhere claimed that they have perfected their title by adverse possession over the suit premises 9 and they never claimed the suit property hostile to the title of its owner, i.e., either present plaintiff or his predecessor in title. In view of this, plaintiff, who has admittedly title of ownership over the property, is entitled to recover possession by removing defendants. If the defendants would succeed in proving that they were tenants, they would be entitled to get protection of Rent Act and could not be ejected from the premises without following the due procedure of law prescribed under the Rent Act. However, as they have failed to prove that they are tenants, it must be held that civil Court had jurisdiction to entertain the suit for possession based on the title. 9 In view of the above facts and circumstances noted above, I do not find any fault with the judgment and decree passed by the First Appellate Court. 10 In the result, appeal stands dismissed. Appellants shall bear their own cost and shall also pay cost of the respondent in this appeal. 11 At this stage, the learned counsel for the defendants/appellants makes a request that the defendants may be given six months to vacate the premises as they will have to find alternate accommodation. Taking into consideration their long possession, the decree for possession in favour of the plaintiff shall not be executed for 10 six months from this date subject to condition that the defendants shall file an undertaking before this Court, within six weeks from this date , that they would vacate the premises and hand over the peaceful possession to the plaintiff and shall not create any third party interest in the suit house . If they fail to file the undertaking within the stipulated period, plaintiff/respondent shall be at liberty to execute the decree at any time. (J.H. BHATIA,J.)