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Friday, October 12, 2012

It appears that in the year 1984 all the shop occupiers who are tenants of the plaintiff demolished their earlier shops and constructed permanent structure, but that is with the permission of the plaintiff. That evidence corroborates the case of the defendant to certain extent that he carried out the permanent construction and to give consent, the plaintiff demanded money and as he refused to give money, he filed a suit against him on the ground of encroachment. At the most, it can be said that the defendant was having a small structure of 4 x 5 feet as a shop where he was running his business of tailoring with one machine which was tolerated by the plaintiff, however, the plaintiff did not give consent to the further structure of 11 x 32 feet. In the absence of the consent of the plaintiff, the defendant has constructed permanent structure and thus, his ms.s.k.talekar 13 / 14- 14 - 204.sa.504.1991=sa620.2010.doc encroachment on the land his evident.


- 1 - 204.sa.504.1991=sa620.2010.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 504 OF 1991
WITH
SECOND APPEAL NO. 620 OF 2010
WITH
CIVIL APPLICATION NO. 1620 OF 2010
IN
SECOND APPEAL NO. 620 OF 2010
Shri Pandurang Dharma Gaikwad
Adult, residing at Soigaon,
Occupation : Trade, Taluka Kolhapur,
District Raigad ..Appellant
Orig. Defendant
-VersusShri Mahamudmuya Ahmadsaheb Patil
Adult, Occupation Agriculture and
Trade, Residing at Shil Phata,
Khopoli, Taluka Khalapur,
District Raigad ..Respondent
Orig. Plaintiff
..........
Mr.D.S.Sawant, Advocate for the Appellant.
..........
              CORAM : MRS.MRIDULA BHATKAR, J.
        RESERVED ON 11
TH
 SEPTEMBER 2012
        PRONOUNCED ON 05
TH
 OCTOBER 2012
ORAL JUDGMENT :
1 Second Appeal  No.504 of 1991 is arising out of proceeding in
Regular Civil Suit no.96 of 1984.  Respondent-Mohamuddin is the plaintiff
in civil suit no.96/1984.  The suit was filed for mandatory injunction i.e. for
ms.s.k.talekar 1 /  14- 2 - 204.sa.504.1991=sa620.2010.doc
removal of encroachment and the possession.  The suit was dismissed
with  costs  by  judgment  dated  29
th
 July  1987,  against  which  the
respondent/original plaintiff preferred first appeal no.119/1987 which was
allowed on 21
st
 August 1991 and the judgment and decree passed by the
lower court was set aside.  The said judgment and order of the appellate
court is challenged by the appellant-original defendant in second appeal
no.504/1991.
2 Second Appeal No. 620/2010 is filed against the judgment and
order of the concurrent finding of the courts below.  Regular Civil Suit
No.30/1995 was filed for perpetual injunction against the appellant from
interfering the possession of the respondent over the suit  land i.e. 7.4 M
X 3.3. M., which was decreed on 16.2.1998 by the trial court against
which  civil  appeal  was  preferred  by  the  present  appellant-original
defendant in suit of 61/1998 and the said appeal was dismissed with
costs on 9
th
 July 2012.
3 In  appeal  no.504/1991,  though  appearance  of  one  advocate
Mr.Pawar is shown, he did not appear before this court when the matter
was taken up for hearing.  The matter was shown on the board for final
hearing since last week and thus, sufficient  notice was given  to  the
respondent.  In second appeal no. 620/2010, though the writ was served
ms.s.k.talekar 2 /  14- 3 - 204.sa.504.1991=sa620.2010.doc
on  the  respondent,  nobody  appeared  for  the  respondent.   Both  the
appeals are listed on the board of final hearing, since last week and thus
sufficient notice was given to the respondent.  Hence appeal proceeded
exparte.
4 In both the second appeals, the  submissions were made by the
learned counsel for the appellant  that these two appeals are between the
same  parties  and  involve  the  same  substantial  questions  of  law,
therefore,  as  the  appeal  no.504  of  1991  is   already  admitted  and
substantial questions of law are formulated in second appeal no.504 of
1991, so they are already clubbed, but second appeal no.620/2010 is to
be admitted on the same questions of law.
5 These submissions that appeals are listed on the board of final
hearing  and agreed that second appeal no.620 of 2010 is to be decided
at the stage of admission were accepted by the Court.  Hence, second
appeal no.620 of 2010 is admitted and substantial questions of law in
second appeal no.504 of 1991 are treated same substantial questions of
law as are formulated in second appeal no.620 of 1991.   By
consent, both second appeals are heard together and decided finally by
this common judgment.
ms.s.k.talekar 3 /  14- 4 - 204.sa.504.1991=sa620.2010.doc
6 Second  appeal  no.504/1991  is  admitted  on  18.11.1991.   The
substantial questions of law are considered as ground nos.5 to 8 :
(1) That the case of the Defendant that he had
constructed  the  structure  on  the  suit  property  after
taking  oral  consent  on  rental  basis  of  Rs.30/-  per
month ought to have been accepted and relied upon.
(2)That the substantial question of Law in this case is
that  the  Plaintiff  has  filed  the  suit  alleging  that
somewhere in the month of May 1984, the Defendant
has encroached upon the suit property, where as this
case of the Plaintiff has been falsified by the version of
the  Plaintiff's  own  witness  and  also  from  the
documentary  evidence  produced  by  the  Defendant
such as receipts showing that the structure was in
existence prior to 1984.
(3)That document Exhibit 69 to 72 and other receipts
produced  by  the  Defendant  in  the  Appellate  Court
would  go  to  show  that  the  Defendant  was  in
possession much prior to the date on which Defendant
alleged  to  have  been  encroached  upon  the  suit
property.
(4) That the substantial question of Law is that
the  Lower  Appellate  Court  has  wrongly  shifted  the
burden on the Defendant to prove that he was tenant
in the suit property, whereas the Plaintiff has filed the
suit  against  the  Defendant  on  the  basis  of
encroachment by the Defendant in the year 1984.
7 Mr.Sawant, learned counsel for the appellant submitted that the
appellant is running a tailoring shop and was in possession of the suit
property since 1980.  It is denied that he was in possession of the suit
premises since 6
th
 May 1984 when the cause of action has taken place.
ms.s.k.talekar 4 /  14- 5 - 204.sa.504.1991=sa620.2010.doc
He  submitted  that  the  title  of  the  plaintiff  is  not  disputed  by  the
respondent.  However, encroachment is not proved by the plaintiff.  The
trial court has dismissed the suit but the appellate court, while allowing
the  appeal  of  the  respondent,  did  not  consider  the  evidence  of  the
appellant.  The appellate court wrongly placed burden of proof on the
appellant of the payment of rent by the appellant to the respondent.  He
pointed out that the plaintiff’s witnesses i.e. P.W.3 Mangrulkar, Exhibit 55
and Mr.Shaikh, Exhibit 65 have admitted that the defendant appellant
was on the suit premises prior to 1984 i.e since 1980.  The defendant
was doing his business of tailoring in a temporary tin shed.  The shed
was erected and constructed by brick masonary wall.  The case of the
appellant that he was occupying the suit  premises with the permission of
the  respondent  since  1980  on  payment  of  Rs.30/-  per  month.   The
respondent  did  not  issue  any  rent  receipt  towards  that  payment.
However, allowed him to continue his business of tailoring.  It is further
argued that evidence of the appellant ought to have been believed by the
first  appeal  court  on  the  point  of  occupation.   The  learned  counsel
submitted that when the appellant i.e. original defendant constructed the
structure in the place of shed, the respondent-plaintiff demanded more
rent.  He made demand of Rs.50,000/- as deposit and also made steep
hike and demanded monthly rent of Rs.100/- from the appellant.  The
ms.s.k.talekar 5 /  14- 6 - 204.sa.504.1991=sa620.2010.doc
learned counsel submitted that it was not possible for the appellant to
nod such a steep hike of the rent and also to pay deposit of Rs.15,000/-.
Therefore,  the  respondent  made  out  a  false  case  of  encroachment
against the appellant and filed a suit against him.
8 The learned counsel argued that the appellate court has mixed up
the issue of tenancy and encroachment. He argued that the appellant
used to pay the tax viz. municipal taxes, MSEB bills, in respect of the suit
property  and thus he was not at all an encroacher, therefore the appeal
ought to have been allowed  by the first appeal court.  He pointed out that
the plaintiff/respondent filed a suit No.30/1995 for perpetual injunction
that the original defendant should not disturb his possession in respect of
land admeasuring 7.4 X 3.3 meters (32 x 11 feet).  The learned counsel
explained that the suit property in second appeal no. 620/2010 is a rear
side property of the suit property in second appeal no.504/1991.  The suit
property in second appeal no.620/2010 is a brick masonary structure of
W.C. constructed by the appellant.   He submitted that on the basis of the
contentions  raised  in  the  written  statement  filed  in  regular  civil  suit
no.30/1995,  the  appellant   claimed  his  hostile  title  and  adverse
possession over the suit property.  However, the first appellate court
determined this point of claim by adverse possession at point no.4 and
gave negative finding against the appellant.  The learned counsel argued
ms.s.k.talekar 6 /  14- 7 - 204.sa.504.1991=sa620.2010.doc
that the appellant, at this stage, did not claim title by adverse possession
and therefore, this Court need not give any finding to that effect.  He
reiterated the claim of the plaintiff in the suit property as a tenant which is
accepted by the appellate court in its findings in appeal no.61/1998.  He
relied on paragraph 13 of  the observations  of the Judge  of the  first
appellate court wherein it is mentioned that the defendant's admission in
his examination-in-chief itself disclosed that his status as a tenant and
the admission in respect of the relationship between the plaintiff and the
defendant is as a landlord and a tenant.  He argued that the admission of
a party is a substantive evidence of a fact.  However, trial court has failed
to  give  due  weightage  to  such  admission.   While  summarizing  his
arguments, the learned counsel submitted that the courts below  ought to
have appreciated that the appellant was never a trespasser.  He was
allowed to use that land and as the relationship between the plaintiff and
the appellant  was of landlord and tenant.  No person would be tolerated
on the land without accepting any consideration either by license fees or
rent.  He prayed that the decree of the appellate court be set aside in
both the appeals.
9 All the questions of law are based on the erroneous appreciation of
evidence  adduced  by  the  parties  and  therefore,  to  answer  these
questions  one needs to go into the evidence of the parties  Question
ms.s.k.talekar 7 /  14- 8 - 204.sa.504.1991=sa620.2010.doc
no.4 is in respect of a 'burden of proof' which was on the defendant that
he was a tenant in the suit property.  I will deal with this substantial
question of law  first.  Though the suit is filed for the encroachment,
defendant has taken a defence that he was a tenant in the suit premises
and therefore, he cannot be treated as an encroacher.  True, in the case
of encroacher, the initial burden is on the plaintiff to show that he is the
owner  of  the  suit  property  and  there  is  an  encroachment  by  the
defendant.   If defendant contends  that he is occupying  the disputed
premises as he has some right in it, then the onus shifts on the defendant
to show in what capacity he is occupying the suit premises.
10 I have gone through the evidence of the witnesses of the appellant
i.e. Yashwant Bhandilkar (exhibit 72), who has acted as a middle-man
when the appellant occupied the suit property in June 1979 and evidence
of Vishnu Mangarulkar (exhibit 55), and also evidence of the plaintiffPandurang Gaikwad, exhibit 73.    Pandurang Gaikwad was examined on
the point of possession of the suit property who supported the claim of
the  defendant  that  the  defendant  was  in  the  possession  of  the  suit
property from the year 1979.  However, this witness was working with
him.  The appellant has occupied the suit premises since 1979 and doing
the business of tailoring in the suit premises.  Pandurang  Rasal was
ms.s.k.talekar 8 /  14- 9 - 204.sa.504.1991=sa620.2010.doc
working with him from the year 1982 as an assistant tailor and therefore,
his evidence can be accepted about the possession of the suit property
by the appellant  from the year when he joined the defendant.
11 Yashwant  Bhandilkar  has  acted  as  a  middle-man  and  the  suit
property, as per his evidence, was let out to the appellant /defendant from
June 1979 on rental basis.  However, this fact is not mentioned in the
written statement of the defendant and therefore evidence of Yashwant
Bhandilkar is a very weak evidence and not a conclusive one.
12 Mr.Sawant, learned counsel for the appellant  submitted that the
Court should take into account a long occupation and use of the suit
premises by the appellant.  The appellant  as allowed to carry out his
business of tailoring on the suit premises without questioning by the
respondent-landlord because he was accepting the rent for the same.  It
may be that the landlord when let out the premises to a person may not
issue rent receipt to a tenant but he is allowed to continue the business
or  stay  in  the  suit  premises.   The  learned  counsel  endeavoured  to
convince the Court that the appellant  is a permissive occupier on the
land and he was never an encroacher.
ms.s.k.talekar 9 /  14- 10 - 204.sa.504.1991=sa620.2010.doc
13 The entire case of the appellant  is based on the proposition that as
he  was  occupying  the  suit  premises  since  1979,  it  was  with  the
permission of the landlord and as he was allowed to stay on the suit
premises, so it is to be inferred that rent was paid by him and accepted
by the landlord.  It is contended that the appellant has proved that he is a
tenant then ground of encroachment as pleaded by the plaintiff goes
away and the plaintiff has no right to claim possession on the ground of
encroachment and so no relief either of perpetual injunction or mandatory
injunction or possession can be granted in favour of the appellant.  Thus,
foundation of the case of the appellant is that he is a tenant of the
respondent.   This fundamental fact is required to be proved.  Question is
whether this fact can be proved in the absence of any documentary or
sufficient oral evidence?
14 Admittedly, no documentary evidence either of rent receipt or any
agreement is produced by the appellant  in both the suits.  The appellant
tried to prove this fact with the help of these three witnesses.  However,
he did not mention anything about obtaining the suit property with the
help of any middle-man.  Had this suit property been obtained with the
help of  Mr. Bhandilkar, then this fact ought to have been mentioned by
the appellant in the written statement.  Oral evidence should pass a test
ms.s.k.talekar 10 /  14- 11 - 204.sa.504.1991=sa620.2010.doc
of credibility.    It is expected that party should take a consistent stand to
build  up  his  case  from  the  initial  stage  of  the  suit.   Admittedly,  the
respondent had let out few shops or premises near the suit premises, to
other persons.  However, that evidence will not establish the fact that
therefore the suit premises was also let out  to the appellant  by the
respondent-landlord.  The fact of possession is not challenged  as there
is a prayer of the possession and relief to that extent is prayed by the
plaintiff.  Thus, the fact that the appellant is in possession of the suit
property since  1979 is itself not helpful  to the appellant  to  establish
tenancy.  Long possession or even permissive long possession cannot
itself establish a person is a tenant of the landlord.  It can be only said
that he was allowed to stay or remain on the suit property for some
period and for that period, his possession was tolerated and therefore he
cannot be labelled as an encroacher for that period.  As soon as a
permission is withdrawn, the status of an occupant is converted into an
encroacher.   Thus,  in  the  absence  of  any  tenancy,  no  legal  right  is
created in favour of the appellant  against the respondent.
15 The trial court and appellate court have not committed any error on
putting the burden on the defendant to prove his status as a tenant and
he was not an encroacher.
ms.s.k.talekar 11 /  14- 12 - 204.sa.504.1991=sa620.2010.doc
16 The plaintiff/respondent examined himself.   He has deposed that
the defendant has constructed room east to west 11 feet and south north
32 feet.  Thus, the structure is of 11 x 32 feet.  He has specifically
mentioned that the defendant encroached the said area from 6.5.1984.
He has denied that the defendant was his tenant.  He admitted that
exhibit 41 B/ 1, 2 to 5 are the receipts in the name of defendant.  These,
receipts are the receipts of payment of the monthly tax in respect of the
suit premises.  He also examined Balaju Natu Mhatre and one Vishnu
Vyankappa Morul on the point of encroachment.  Vishnu stated that he is
a tenant of the plaintiff and the plaintiff issued rent receipts to him.  He
had deposed that the defendant had one cabin of 4 x 5 feet and the cabin
of the defendant was adjacent to his shop.  He has stated that the
defendant demolished the said cabin and he constructed tenament of 10
x 30 feet in May or June 1984.  In the course of examination, he admitted
that his shop and other 4 to 5 shops are on one land. Defendant’s shop
was one of them and they all are tenants of the plaintiff.  He did not
produce any rent receipt given to him by the plaintiff.  He has stated in
the cross examination that he and all the other tenants of the plaintiff,
who are adjacent to his shop, are paying municipal taxes to Khopoli
Municipal Council.  He deposed that the plaintiff/respondent gave oral
ms.s.k.talekar 12 /  14- 13 - 204.sa.504.1991=sa620.2010.doc
consent  for   his  construction  and  other  tenants  have  constructed
tenament on their own expense.  It appears from the evidence that the
defendant allowed that shop of 4 x 5 feet on the said land.  Evidence of
this witness if accepted as it is, it is established that the plaintiff issued
rent receipts to his tenants.    Assuming  that the plaintiff never issued
rent receipts to his tenants who were having shops in the line, the fact of
tenancy  of  the  appellant  is  not  proved.   From  the  evidence  of
Mr.Mangarulkar, placement of the shop of the defendant can be fixed.  It
was adjacent to the shop of the witness.  It appears that in the year 1984
all the shop occupiers who are tenants of the plaintiff demolished their
earlier shops and constructed permanent structure, but that is with the
permission of the plaintiff.  That evidence corroborates the case of the
defendant  to  certain  extent  that  he  carried  out  the  permanent
construction and to give consent, the plaintiff demanded money and as
he refused to give money, he filed a suit against him on the ground of
encroachment.   At the most, it can be said that the defendant was having
a small structure of 4 x 5 feet as a shop where he was running his
business  of  tailoring  with  one  machine  which  was  tolerated  by  the
plaintiff, however, the plaintiff did not give consent to the further structure
of  11  x  32  feet.  In  the  absence  of  the  consent  of  the  plaintiff,  the
defendant  has  constructed  permanent  structure  and  thus,  his
ms.s.k.talekar 13 /  14- 14 - 204.sa.504.1991=sa620.2010.doc   
encroachment on the land his evident.
17 Submissions  of  the  learned  counsel  that  the  defendant  was  a
permissive occupier or tenant and so he cannot be an encroacher and
the  possession  is  demanded  on  the  ground  of  encroachment  and
therefore if defendant is treated as a permissible user, then on the ground
of encroachment, the defendant cannot be dispossessed, are devoid of
merit and unsustainable in law.
18 The trial court did not commit any error in assessing the evidence,
no omission is found therefore, the finding of the substantial questions of
law nos. 1, 2, 3 and 4 is against the appellant.
19 Both the appeals are dismissed.
20 In view of the dismissal of the second appeals, civil application, if
any stands disposed of accordingly.
( JUDGE )
ms.s.k.talekar 14 /  14