1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 50 OF 2007 Shri Gurudas Krishna Shirodkar major in age, businessman, residing at House No.450-A, Layamati, Davorlim, Salcete Goa. ... Appellant versus Shri Chandrakant Krishna Shirodkar, major in age, businessman, residing at House No. 450, Layamati, Davorlim, Salcete Goa. ... Respondent Shri S. S. Kakodkar, Advocate for the Appellant. Shri C. A. Coutinho, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 18TH JUNE, 2009. ORAL ORDER Heard Shri S. S. Kakodkar, learned Counsel on behalf of the Appellant and Shri C.A. Coutinho, learned Counsel on behalf of the Respondent. 2. This is plaintiff's Second Appeal arising from R.C. S. No.304/86/D. The dispute between the plaintiff and the defendant who are brothers is in respect 2 of a gadda shop/stall situated near Hari Mandir, Margao, Goa. The plaintiff claimed that he was the owner of the said stall and had installed the same in the property of Madhu Rivanker of Margao in the year 1975 who owned the property on a monthly rent of Rs.20/- payable to him. The case of the plaintiff was that after the relations between both got strained somewhere in January, 1985, the defendant forcibly took over the possession of the stall thereby depriving the plaintiff of the stall. On the other hand, it was the case of the defendant that he had purchased the said stall existing in the property of the said Madhu Rivanker from one Jaganath on payment of Rs.3,500/-, and since the plaintiff was unable to maintain himself he called the plaintiff to look after the business of the defendant in the said stall. 3. The learned trial Court by Judgment dated 24-8-2001 partly decreed the suit and directed the defendant to hand over the stall to the plaintiff. However, the first appellate Court by Judgment dated 3-2-2007 allowed the appeal, set aside the Judgment of the trial Court and dismissed the suit of the plaintiff. The evidence on record clearly suggests that in the beginning both the brothers were running the said stall but from the year 1983 or thereabout it is the defendant who is in exclusive possession of the said stall. As far as this aspect is concerned, both the Courts below have given a concurrent finding. The learned trial Court in para 19 of the Judgment observed that the plaintiff had failed to establish that the defendant had forcibly taken possession of the stall and in fact Exh.PW1/H(letter dated 13-9-1983) clearly showed that the plaintiff had voluntarily given his no 3 objection to transfer the suit stall to the defendant and this no objection certificate was probably given when there was a settlement talk between the plaintiff and the defendant. The learned first appellate Court also observed that the plaintiff had failed to prove that the defendant had obtained the possession of the suit stall by force as the pleadings were vague to that effect nor any evidence was led by way of dispossession of the plaintiff by force. The learned first appellate Court had also observed that the plaintiff had also failed to prove that the defendant had dispossessed the plaintiff by himself or by any fraud committed by him, and that the plaintiff had admitted his signature on the said letter dated 13-9-1983 and that the only suggestion put by the plaintiff that the said letter was fabricated by the defendant, which fact the plaintiff had not pleaded in his plaint. It appears that initially the defendant was working elsewhere and then was running the shop along with the plaintiff and thereafter the defendant resigned in the year 1976, and according to the defendant, started running the stall on a full time basis. There is also evidence on record to say that the plaintiff himself was employed from 1972 to 1982. 4. Be that as it may, Shri Kakodkar, learned Counsel on behalf of the plaintiff submits that the learned trial Court had given a finding that the plaintiff was the owner of the stall but the learned first appellate Court without coming close to that finding given, has reversed the same and has come to the contrary conclusion. Learned Counsel further submits that the plaintiff had produced evidence to show that the plaintiff was in possession of the stall from the year 4 1975 to the year 1983 when the plaintiff paid the required fees to obtain registration certificate under the Shops and Establishment Act as well as obtained a loan to run the business and insuring the stock with an Insurance Company in his name and all these documents would prove that it is the plaintiff who was the owner of the said stall. Learned Counsel further submits that the documents produced by the plaintiff have been misconstrued by the learned first appellate Court while reversing the Judgment of the trial Court and has not given any detail reasons. On the other hand, Shri Coutinho, learned Counsel on behalf of the Respondent has submitted that the registration certificate obtained under the Shops and Establishment Act only up to the year 1983 was in the name of the plaintiff but subsequently from the year 1985 till date it is the defendant who has obtained the same. He further submits that it is the defendant who has been paying the rent to the said Rivanker from the year 1983 onwards and the rent receipts after the said Rivanker's death in the year 1975-1976 have been proved by the defendant by examining the niece of the said Rivanker by name Kalaviti. Shri Coutinho further submits that at the time when the plaintiff closed his evidence in the year 2000, the said Rivanker was very much alive and the plaintiff could have examined him in support of his case that it is the plaintiff who was permitted by him to erect the stall. Learned Counsel further submits that after the death of the said Rivanker when there was a dispute as regards the payment of the said rent, it is again the defendant who has been depositing the same before the Rent Controller. 5 5. As already stated, the evidence on record clearly shows that initially both the brothers were running the stall and it is only after the year 1983 or thereabout and possibly after the letter dated 13-9-1983 that it is the defendant who has been in exclusive possession of the said stall and has also been paying rent to the said Rivanker for the space occupied by the defendant. It is also the case of the defendant that from the date of the purchase of the stall the defendant was regularly paying the rent to Shri Rivanker for all the years. The falsity of the case of the plaintiff also emerges from the fact that the plaintiff did not explain in his pleadings the circumstances in which the defendant came to exclusively occupy the stall. In case the plaintiff was forcibly evicted, the plaintiff would certainly not take it lying down silently. There was total silence on the part of the plaintiff for almost three years until the plaintiff filed the suit or about 26-12-1986. Both the parties did not produce any documents to prove which of them had erected the stall but as already stated the fact remains that the defendant is in possession of the same by paying rent to the owner of the property. Once it was admitted that the defendant was in possession of the suit stall prior to the filing of the suit, it was entirely for the plaintiff to show that he had a better title to the stall than the defendant or that the defendant was not the owner of the stall. Although accordingly both rent was payable to the said Rivonker, for putting up the stall, the plaintiff did not pay any rent at any time and it is the defendant who paid it and this is because he was the owner of the stall. Possession is good title against everyone who cannot prove better title. The three sets of documents produced by the plaintiff including the said registration certificate obtained under 6 the Shops and Establishment Act would not show that the plaintiff was the owner. Both being brothers, it is quite probable that the documents produced by the plaintiff were obtained in his name to facilitate the running of the shop at the time when the defendant was employed elsewhere, and both were running the stall. 6. The learned first appellate Court after carefully examining every document produced has come to the conclusion that the plaintiff has failed to prove the ownership as regards the suit stall. This is not a case of misconstruction of documents but a case where documents produced were not sufficient to prove title. It cannot be said that the said conclusion is not based on the evidence produced. There is no other substantial question of law involved in this Second Appeal and the same is hereby consequently dismissed. N. A. BRITTO, J. RD