whereby the High Court dismissed the appeal preferred by the appellant-accused and allowed the appeal preferred by the State of Maharashtra, respondent herein and enhanced the sentence of life imprisonment to death which was imposed by = murders were not pre-planned or pre-meditated. No weapon much less dangerous was used in commission of offence. As pointed out earlier, only on account of property dispute, the appellant went to the extent of committing murders.=In our opinion, it is not a rarest of rare case where extreme penalty of death is called for instead sentence of imprisonment for life as ordered by the trial Court would be appropriate.

                                                            REPORTABLE



                                                           


               IN THE SUPREME COURT OF INDIA




              CRIMINAL APPELLATE JURISDICTION








              CRIMINAL APPEAL NO. 868 OF 2006










Sham @ Kishor Bhaskarrao Matkari                      .... Appellant(s)






            Versus






The State of Maharashtra                              .... Respondent(s)










                            J U D G M E N T 




P. Sathasivam, J.




1)      This   appeal   is   directed   against   the   common   final 






judgment   and   order   dated   03.05.2006   passed   by   the   High 






Court   of   Judicature   of   Bombay,   Bench   at   Aurangabad   in 






Criminal   Appeal   Nos.   183   of   2004   and   391   of   2003   whereby  






the   High   Court   dismissed   the   appeal   preferred   by   the 






appellant-accused   and   allowed   the   appeal   preferred   by   the 






State   of   Maharashtra,   respondent   herein   and   enhanced   the 






sentence of life imprisonment to death which was imposed by 








                                                                           1



the   First   Ad-hoc   Additional   Sessions   Judge,   Jalgaon   in 






Sessions Case No. 160 of 2001.      










2)    Brief facts:






a)    Sham   @   Kishor   Bhaskarrao   Matkari,   the   appellant-






accused was residing with his brother Manohar Matkari (since 






deceased)   and   his   family   consisting   of   his   wife,   Meena   (since 






deceased)   and   three   children,   namely,   Akhilesh   (since 






deceased), Monika (PW-7) and Vishwesh in a rented premises 






owned by one Pandurang Patil (PW-3).  Manohar, the deceased 






was   serving   in   the   Railway   Mail   Service,   Bhusawal.     Dipak 






Narayan Thakur (the Complainant) was their neighbour.    






b)    On   28.06.2001,   at   about   9.00   to   9.15   p.m.,   when   the 






Complainant  came  out  of  his  house  for   collecting  the   clothes 






which were kept for drying, he noticed that some quarrel was 






going   on   between   the   appellant-accused   and   his   brother 






Manohar  in their house.   He heard the accused saying to his 






brother Manohar that you raised hands on me today, I will see 






you   later.     Since   it   would   be   a   dispute   over   the   household 






matter,   he   neglected   and   went   inside   the   house.     In   the  










                                                                            2



midnight, at about 3.00 to 3.30 a.m., the Complainant heard 






some hue and cry from the house of Manohar.  He also heard 






the   cries   of   Meena,   the   wife   of   Manohar   and   the   noise   of 






beating and groaning of small child from the house.   He also 






noticed   the   smell   of   leakage   of   gas   and   something   burning 






from   the   house   of   Manohar.     Immediately,   he   informed 






Pandurang Patil (PW-3) - the landlord and also one  Pitamber 






Choudhary, who was residing on the upper floor.   Thereafter, 






all of them proceeded to the house of the deceased-Manohar. 






When they were going towards the house of the deceased, they 






saw   the   accused   coming   out   of   the   house   and   when   they 






enquired, the accused told that three thieves entered into their 






house and assaulted them.  Thereafter, the accused demanded 






water   for   drinking.     They   also   noticed   that   the   hands   and 






clothes   of   the   appellant-accused   were   stained   with   blood. 






When   they   approached   near   the   house   of   the   deceased,   they 






noticed smoke  coming out  of the  house.   Immediately, PW-3, 






the landlord, telephoned the police.  






(c)    On   receipt   of   the   information,   the   Inspector   of   Police, 






Dilip   Shankarwar   (PW-14)   rushed   to   the   place   of   occurrence 










                                                                            3



immediately.  He saw the appellant-accused sitting by the side 






of water tank and having suffered bleeding injury on his head. 






When enquired, the accused narrated the same story that 3 to 






4   persons   entered   into   their   house   and   assaulted   him,   his 






brother, his brother's wife and children and they tried to burn 






his brother's wife and after taking household articles, they fled 






away.   Since blood was oozing out from his head, PW-14 sent 






the   accused   to   the   hospital   for   treatment   in   a   police   jeep.  






When they entered into the house, they noticed smoke coming 






out of the room and Akhilesh, the son of Manohar, was lying 






in injured condition on the cot and blood was oozing from his  






head.     They   also   noticed   that   Manohar,   his   wife   Meena, 






daughter   Monika   and   son   Vishwesh   were   lying   in   injured 






condition   on   the   floor   of   the   house.     They   also   noticed   that 






Meena   was   partially   burnt   and   a   stone   of   big   size   and   a   gas 






cylinder   with   tube   were   lying   near   her   body.     PW-14 






immediately   sent   the   two   injured   boys   and   girl   to   the 






Municipal   Hospital,   Bhusawal   in   a   police   jeep.     As   Manohar 






and   his   wife   were   dead,   their   bodies   were   sent   for   post-






mortem.     At   the   same   time,   spot   Panchanama   (Ex.24)   was 










                                                                                4



drawn   by   PW-14   and   he   also   seized   the   articles   found   lying 






there including wooden rafter having stains of blood and a big 






stone.        Since   the   condition   of   injured   Akhilesh   was 






deteriorating, he was shifted to Civil Hospital, Jalgaon and he  






expired   on   29.06.2001.     Injured   Monika   and   Vishwesh   were 






shifted to Civil Hospital, Jalgaon.   Later on, both were shifted 






to a private hospital at Aurangabad.     






(d)    A crime was registered being Crime No. 41 of 2001 for the 






offences   punishable   under   Sections   302,   307   and   201   of   the  






Indian Penal Code, 1860 (in short "IPC").  During the course of  






investigation, the Investiating Officer recorded the statements 






of Pandurang Patil (PW-3) and others.   He also seized clothes  






of   the   deceased,   Manohar,   Meena   and   Akhilesh.     Since   the 






accused   was   detected   as   perpetrator   of   the   crime,   he   was 






arrested.  His nail clippings and blood samples were collected. 






PW-14 also recorded the statements of Monika and Vishvesh, 






the injured children.  






(e)    After   necessary   investigation,   charge-sheet   was   laid   in 






the   Court   of   Judicial   Magistrate,   First   Class,   Bhusawal,   who 






committed the case to the Court of Sessions.  The First Ad-hoc 










                                                                            5



Additional   Sessions   Judge,   Jalgaon,   after   examining   16 






witnesses including Monika, an injured minor girl as PW-7, by 






judgment   dated   04/05.03.2003   convicted   the   appellant-






accused for the offence punishable under Section 302 IPC and  






sentenced   him   to   imprisonment   for   life   and   to   pay   a   fine   of 






Rs.25,000/-,   in   default   of   payment   of   fine,   to   suffer   rigorous 






imprisonment for  two years and also sentenced him to suffer 






rigorous   imprisonment   for   seven   years   for   the   offence   under  






Section 307 IPC, and to pay a fine of Rs.1,000/-, in default of 






payment   of   fine,   to   suffer   rigorous   imprisonment   for   three 






months   and   acquitted   him   for   the   offence   punishable   under 






Section 201 IPC.  






(f)    Against   the   aforesaid   judgment,   the   State   of 






Maharashtra,   respondent   herein   filed   an   appeal   being 






Criminal   Appeal   No.   391   of   2003   before   the   High   Court   of 






Judicature of Bombay, Bench at Aurangabad for enhancement 






of   sentence   from   imprisonment   for   life   to   death   and   the 






appellant-accused also filed appeal being Criminal Appeal No. 






183 of 2004.   Both the appeals were heard together and by a 






common   impugned   judgment   dated   03.05.2006,   the   High 










                                                                              6



Court dismissed the appeal filed by the appellant-accused and 






allowed   the   appeal   filed   by   the   State   and   enhanced   the 






sentence of life imprisonment to death.   Aggrieved by the said 






judgment,   the   appellant-accused   has   filed   this   appeal   before 






this Court by way of special leave petition.  






3)    Heard   Mr.  Tara   Chand  Sharma,  learned   counsel   for   the 






appellant-accused and Mr. Sushil Karanjkar, learned counsel 






for the respondent-State.  






4)    Learned counsel for the appellant though canvassed the 






ultimate conviction imposed by the trial Court and affirmed by 






the High Court mainly contended before us with regard to the 






death sentence awarded by the High Court.  According to him, 






in view of several mitigating circumstances highlighted before 






the High Court, without adverting to the same, the High Court 






awarded   the   extreme   penalty   of   death   sentence   which   is   not 






warranted in the facts and circumstances of the case.  On the 






other   hand,   learned   counsel   for   the   State,   by   taking   us 






through the relevant materials, submitted that in view of death 






of three persons and causing injuries to two, all in one family, 










                                                                          7



the   High  Court  was   justified  in   awarding  capital  punishment 






(death sentence) to the appellant-accused.  






5)    We have carefully perused all the relevant materials and  






considered the rival submissions. 






6)    Very briefly, let us consider the prosecution case and the 






ultimate   conviction   under   Sections   302   and   307   IPC.     The 






appellant-accused   was   the   real   brother   of   Manohar   Matkari-






the   deceased   and   was   residing   with   him   in   a   rented   premise 






owned by Pandurang Patil, (PW-3).  The said Manohar and his 






wife   Meena   were   having   three   children.     The   incident   took  






place in the night intervening 28/29.06.2001.  Dipak Narayan 






Thakur   (PW-1)   was   the   neighbour   of   Manohar   in   one   of   the  






premises   owned   by   Pandurang   Patil,   (PW-3)   as   tenant   at   the 






relevant point of time.   According to PW-1, on the said night,  






at about 9.00 to 9.15 p.m., when he came out of his house to 






collect the clothes which were kept for drying, he noticed that  






some   quarrel   was   going   on   between   the   accused   and   his 






brother   Manohar   in   their   house.     In   the   mid-night,   at   about 






3.00 to  3.30 a.m., PW-1 again  heard  some  hue  and  cry from 






the   house   of   Manohar.     He   also   heard   cries   of   the   wife   of 










                                                                             8



Manohar and the noise of beating and groaning of small child 






from  the   house.    He  also noticed smell  of leakage  of gas and 






something burning in the house of Manohar.   On noticing all  






these   things,   PW-1   rushed   to   his   landlord,   Pandurang   Patil, 






(PW-3)   and   also   woke   up   one   Pitamber   Choudhary,   who   was 






residing   on   the   upper   floor.     It   is   further   seen   from   his 






evidence   that   he   then   along   with   those   persons   proceeded 






towards   the   house   of   Manohar   and   saw   the   accused   coming 






out   of   the   house   and   when   they   enquired   him,   the   accused 






told   that   three   thieves   had   entered   into   their   house   and 






assaulted   him,   his   brother,   his   brother's   wife   and   their 






children.     On   hearing   this,   PW-3   informed   the   police   over 






phone.    The  police   arrived   there   within   10   minutes  and   took  






the accused to the hospital as he had sustained head injury. 






The police also took all the three children to the hospital in a 






police   jeep.     Thereafter,   PW-1   entered   the   house   of   Manohar 






along with the police officers.  They noticed that Manohar and 






his wife Meena were lying dead and Meena was partially burnt. 






PW-1   narrated   the   incident   to   the   police   which   was   reduced 






into writing and treated as FIR (Ex.P-22). 










                                                                            9



7)    When   the   appellant-accused   was   undergoing   treatment 






in   the   hospital,   on   30.06.2001,   the   Police   Officer,   Zillapeth 






Police   Station,   Jalgaon   thought   that   the   accused   may   not 






survive and sent a requisition to Muralidhar Sapkale, (PW-16) 






who was the Executive Magistrate working in Treasury Office, 






Jalgaon   to   record   his   statement.     Pursuant   to   the   same, 






PW-16   visited   the   Civil   Hospital,   Jalgaon   and   recorded   the  






statement of the accused which is Ex.73.   All were under the 






impression   that   on   the   death   of   the   accused,   the   said 






statement   will   be   treated   as   dying   declaration.     The   said 






statement,   Ex.73,   contains   confession   on   the   part   of   the 






accused.     The   prosecution   also   relied   on   the   statement   of 






Monika, (PW-7), daughter of Manohar, who has stated to have 






seen the part of the occurrence. 






8)    Learned counsel for the appellant-accused has taken us 






through   the   evidence   of   PWs-1,   3,   7   and   16   and   all   other  






connected   documents.     We   have   already   stated   that   Dipak 






Narayan   Thakur,   (PW-1)   is   residing   in   one   of   the   premises 






adjoining   to   Manohar   owned   by   one   Pandurang   Patil,   (PW-3) 






as   tenant,   at   the   relevant   time.     PW-1   noticed   the   first 










                                                                            10



occurrence, that is, between 9.00 to 9.15 p.m., namely, at the 






time  of  collecting his  clothes  which  were kept  for  drying  that 






some   quarrel   was   going   on   between   the   accused   and   his 






brother   Manohar.     It   was   he   who   witnessed   the   second 






incident also, that is, in the mid-night, at about 3.00 to 3.30 






a.m., in the house of Manohar.  He not only heard the cries of 






Manohar but also heard noise of beating and groaning of small  






children from the house.   He also noticed leakage of gas from 






the   house   of   Manohar.     It   is   further   seen   that   on   his 






information,   PW-3,   their   landlord,   and   one   Pitamber 






Choudhary,   also   joined   and   noticed   the   occurrence   in   the 






early morning.   When PW-1 and PW-3 proceeded towards the 






house   of   Manohar,   they   saw   the   accused   coming   out   of   the 






house   and   when   they   enquired,   the   accused   told   that   three 






thieves had entered into their house and they assaulted him, 






his   brother,   his   brother's   wife   and   their   children.     They   also 






noticed blood stains in the hands and clothes of the accused. 






PW-1 also  informed that  when they went inside  the  house  in 






the   morning   along   with   the   police   and   others,   they   noticed 






that Manohar and his wife Meena were lying dead and Meena 










                                                                              11



was   burnt   to   some   extent.     They   also   noticed   a   square   sized 






stone weighing roughly 25 kgs. near the dead body.   The two 






injured   boys   and   girl   were   also   taken   to   the   hospital.     Dr. 






Sandip Ingale (PW-6) and Dr. Sangram Narwade (PW-11), who 






conducted   the   post-mortem,   were   also   examined.     They   also 






noted   the   injuries   of   all   the   three   persons.     We   have   already 






noted   the   statement   of   accused   himself   to   the   Executive 






Magistrate   (PW-16)   at   the   time   when   he   was   admitted   in   the 






hospital.     Since   he   was   alive,   the   statement   recorded   by   the 






Executive   Magistrate   had   been   treated   as   statement   under 






Section 164 of the Code of Criminal Procedure, 1973 (in short  






"the Code") and proceeded further.  Though the said statement 






is   not   a   dying   declaration,   however,   the   accused   knowing   all 






the seriousness confessed about the killing of his brother, his 






wife and their child and causing injuries to other two children. 






There is no reason to disbelieve the version of Monika (PW-7)  






who   witnessed   the   occurrence,   neigbours   and   landlord   of 






Manohar (PWs 1 and 3) as well as the confessional statement 






of   the   accused   before   the   Executive   Magistrate.     Considering 






the opinion of the doctors, (PWs-6 and 11), cause of death and 










                                                                               12



recovery  of a  stone  inside   the   house  of  Manohar  where   three 






different   bodies   were   lying,   we   are   satisfied   that   the 






prosecution has established its case beyond reasonable doubt 






for   an   offence   under   Section   302   IPC.     The   trial   Court 






considering   the   fact   that   the   murders   were   neither   pre-






meditated nor pre-planned on the part of the appellant, and a  






simple   case   of   land   dispute   which   led   to   altercation   and 






murdering of three persons, imposed life imprisonment under 






Section   302   IPC   and   rigorous   imprisonment   for   seven   years 






under Section 307 IPC.  The said conclusion is acceptable. 




About Sentence




9)    Learned   counsel   for   the   respondent-State,   by   drawing 






our attention to the recent decision of this Court in Ajitsingh  




Harnamsingh   Gujral  vs.  State   of   Maharashtra,   JT   2011 




(10)   SC   465   submitted   that   the   award   of   death   sentence   is 






appropriate   in   the   facts   and   circumstances   of   this   case.     In 






that case, the accused was charged under Section 302 IPC for 






committing   murders   of   his   wife,   his   son   and   two   daughters 






and the trial Court, after finding that four members from the 






same   family  were  murdered  and  it   was  a   rarest  of   rare  case, 










                                                                            13



imposed   penalty   of   death   upon   the   accused.     The   death 






sentence was confirmed by the High Court and the matter was 






taken up before this Court by way of appeal.  This Court, after  






adverting to the earlier decisions as regards to award of death  






sentence   including   the   principles   enunciated   in  Bachan  




Singh vs. State of Punjab, (1980) 2 SCC 684, Machhi Singh  




and   Others  vs.  State   of   Punjab,  (1983)   3   SCC   470, 




C. Muniappan and Others  vs.  State of Tamil Nadu, (2010) 




9   SCC   567   and   various   other   judgments,   agreeing   with   the 






conclusion   arrived   at   by   the   trial   Court   and   the   High   Court  






and   finding   that   all   the   requisites   for   death   penalty   as 






discussed   and   noted   in   the   various   decisions   are   satisfied, 






confirmed the same.   Absolutely, there is no quarrel as to the  






propositions of law and principles laid down in those decisions 






and   the   ultimate   conclusion   in  Ajitsingh   Harnamsingh  




Gujral   (supra).    In   the   case   on   hand,   the   appellant-accused 




had   no   pre-meditated   plan   or   mind   to   eliminate   the   entire 






family of his brother, he himself slept with the victims on the  






fateful   night,   due   to   land   dispute   quarrel   started   and   ended 






with   murdering   three   persons.     In   those   circumstances   and 










                                                                             14



the   background   and   no   bad   antecedents   of   the   accused,   the 






above   decision   relied   on   by   the   State   is   distinguishable   and 






not helpful to the claim for retaining the death penalty.     






10)    When   the   matter   was   taken   up   before   the   High   Court, 






both   by   the   accused   and   the   State,   after   thorough   analysis, 






the   High   Court   confirmed   the   conviction.     As   an   appellate 






Court,   the   High   Court   once   again   analysed   the   prosecution 






evidence   and   the   defence   taken   by   the   accused   and   finally 






concurred   with   the   conclusion   arrived   at   by   the   trial   Court 






insofar   as   conviction   under   Sections   302   and   307   IPC   are 






concerned.     On   going   through   all   the   materials,   we   are   in  






entire agreement with the said conclusion. 






11)    In   the   appeal   filed   by   the   State   for   enhancement   of 






sentence   from   life   imprisonment   to   death   sentence,   from   the 






evidence   on   record   and   considering   the   materials,   the   High 






Court   identified   the   following   circumstances   for   imposing 






extreme penalty of death:






       "(i)    The date and place of incident not disputed.






       (ii)    In   the   incident   that   occurred,   admittedly,   victim 


       Manohar, his wife Meenabai and son Akhilesh lost their lives 


       and   as   has   been   established   on   medical   evidence, 


       undoubtedly,   these   three   victims   died   homicidal   death.     In 


       that, victim Manohar and his wife Meenabai died on the spot  










                                                                                     15



having suffered head injuries and in addition to that, so far  


as   Meenabai   is   concerned,   she   suffered   burn   injuries, 


indicating   that   the   assailant   i.e.   the   respondent   (original 


accused)   before   the   Court,   caused   burns   by   setting   her   on 


fire by leaking the gas from Gas Cylinder.  






(iii)     The assault on victims by the respondent was aimed at 


midnight when the victims were fast asleep and as such they 


were   defenceless,   showing   that   the   respondent   acted 


dastardly   and   was  completely   depraved.     The   nature   of   the 


injuries, which were inflicted on the child, more particularly, 


the injuries on his head itself show that how the respondent  


acted brutally showing extreme depravity and ruthlessness.






(iv)      The   respondent   was   alone   in   the   house   during   the 


time the occurrence took place at midnight.   This is, in the 


sense,   that   there   was   no   third   person   in   the   house,   much  


less, having entered the house.






(v)       As against this, the Respondent put forth a false story 


that   3   to   4   unknown   persons   entered   the   house   and 


committed   murders   and  murderous  assault   on   the   victims. 


This  plea  of the respondent  (original accused)  was found to 


be false and misguiding the investigating machinery.






(vi)      The   respondent   (original   accused),   in   his   statement 


Ex.-73, has clinchingly stated that the victims were done to 


death   by   him,   so   also   the   injured   children   at   the   time   and 


place of incident.






(vii)     In the early morning, witnesses Dipak Narayan Thakur 


and   Pandurang   Patil   noticed   the   respondent   coming   out   of 


his   house   having   his   hands   and   clothes   on   his   person 


stained with blood.






(viii)       Though  the   respondent  came  up with the  case  that 


unknown   persons   assaulted   the   victims   in   the   house,   he 


remained   silent   in   the   house,   though,   in   his   presence,   the 


victims were done  to death and two small children suffered 


serious injuries.






(ix)      The   respondent   did   not   raise   hue   and   cry,   though 


according to him, in his presence, unknown persons entered 


the   house   and   assaulted   the   victims.     He   did   not   cause 


alarm to the persons in the vicinity, thereby exhibiting most 


queer and unnatural conduct.










                                                                                     16



(x)       The  witnesses, particularly, witness  Dipak Thakur,  in 


the Midnight, heard cries of a woman groaning  in pain and 


early in the morning, saw the respondent coming out of the 


house with blood on his clothes and hands.






(xi)      Both   these   witnesses   Dipak   Thakur   and   Pandurang 


Patil   stated   in   their   evidence   that   on   that   night,   no   third 


person   from   outside   came   to   the   premises,   much   less, 


entered in the house of the victims.






(xii)     The   respondent,   in   his   statement   Ex.-73,   which   is 


accepted and found to be truthful, candidly admitted to have 


assaulted   the   victims   acting   in   a   brutal   manner   out   of  


vengeance arising out of the dispute over the property.






(xiii)     The respondent did not deter, much less felt ashamed 


even while assaulting small children of his real brother when  


they were caught helpless, as they were sleeping when one of  


them was done to death and other two were injured.






(xiv)       Admittedly,   the   earlier   incident   took   place   at   about 


08:30 p.m., which ended after quarrel and some beating by 


victim   Manohar   to   the   respondent.     The   later   incident 


occurred at midnight when the victims were fast asleep.  The  


respondent assaulted them one by one and what is shocking 


is   that   victim   Monika   had   seen   the   respondent   committing 


assault after assault on her father, mother and her brothers 


Akhilesh and Vishwesh.






(xv)      It is seen that the murders have been committed and 


three   persons   were   done   to   death   in   ruthlessness,   showing 


that the respondent was totally depraved of and acted most 


beastly.






(xvi)       Since   the   earlier   incident   took   place   at   08:30   p.m., 


and   the   accused,   after   taking   meals   at   night,   remained   in 


the house and then at midnight, surreptitiously killed one by 


one   and   also   caused   murderous   assault   on   the   victims 


showing   extreme   brutality.     This   shows   that   the   attack   by  


the   accused   was   predetermined,   so   also   premeditated. 


Therefore, it is a case of cold-blooded murders."                










                                                                                     17



12)    With   the   above   aggravating   circumstances   put   forth 






against   the   accused,   various   mitigating   circumstances   were 






also   pressed   into   service   and   pointed   out   that   the   extreme 






penalty  of  death  is  not   warranted.    It is  pointed out  that   the  






accused is 38 years old and his antecedents are unblemished 






and   not   having   any   criminal   tendency,   there   can   be   no 






apprehension even of danger to the society, it cannot be ruled  






out   that   rehabilitation   of   the   accused   is   impossible   and   it   is 






not a rarest of rare case causing for extreme penalty of death. 






13)    Taking   into   consideration   of   both   aggravating   and 






mitigating   circumstances,   the   High   Court,   after   finding   that 






the  accused  having  slept  with  the  victims  in  the   same  house 






proceeded   to   assault   one   after   another,   it   must   be   said   that 






the   assault   was   pre-meditated   and   the   accused   was 






determined to do the same, hence, it cannot be construed that 






the accused was on the spur of the moment, after having done 






to   death   his   brother,   brother's   wife,   the   accused   also   gave 






murderous   assault   on   their   children   and   noting   that   it   is   a 






case   of   extreme   culpability   concluded   that   the   sentence 






awarded   by   the   trial   Court   of   imprisonment   of   life   is 










                                                                               18



inadequate   and   it   is   a   rarest   of   rare   case   where   extreme 






penalty of death is called for accepted the appeal preferred by  






the State and enhanced the penalty of death by hanging.




Conclusion:




14)    Since   this   Court,   in   series   of   decisions   starting   from 




Bachan   Singh   (supra)  indicated   various   aggravating   and 




mitigating circumstances, there is no need to refer to all those 






decisions.     Though   the   appellant   caused   death   of   three 






persons, he  had no  pre-plan  to  done  away with  the  family  of 






his   brother   and   the   quarrel   started   due   to   the   land   dispute 






and,   in   fact,   on   the   fateful   night,   he   was   sleeping   with   the 






other victims in the same house.  In those circumstances and 






other materials placed clearly show that he has no pre-plan or 






pre-determination   to   eliminate   the   family   of   his   brother.     At 






the time of the incident, i.e., in the year 2001, the accused was  






28 years  old and  was jobless.   He is in  jail  since  30.06.2001 






and   in   the   death   cell   since   the   date   of   the   judgment   of   the 






High Court that is on 03.05.2006.  It is clear that he remained 






in   jail   for   more   than   10   years   and   more   than   five   years   in 






death   cell.     The   materials   placed   on   record   show   that   the  










                                                                                19



antecedents   of   the   accused-appellant   are   unblemished   as 






nothing   is   shown   by   the   prosecution   that   prior   to   this 






incident, he was indulged in criminal activities.  The appellant 






had no bad antecedents.  We have already concluded that the 






murders   were   not  pre-planned   or   pre-meditated.     No   weapon 






much less dangerous was used in commission of offence.   As  






pointed   out   earlier,   only   on   account   of   property   dispute,   the 






appellant   went   to  the  extent   of   committing  murders.     This   is 






clear from the prosecution evidence and the conclusion of the 






trial   Court.     As   rightly   pointed   out   by   the   counsel   for   the 






appellant,   there   is   no   reason   to   disbelieve   that   the   appellant 






cannot   be   reformed   or   rehabilitated   and   that   he   is   likely   to 






continue   criminal   acts   of   violence   as   would   constitute   a 






continued   threat   to   the   society.     Considering   the   facts   and 






circumstances,   it   cannot   be   said   that   the   appellant-accused 






would   be   a   menace   to   the   society.     We   are   satisfied   that   the 






reasonings   assigned   by   the   High   Court   for   awarding   extreme 






penalty of death sentence are not acceptable.   It is relevant to  






point   out   that   the   trial   Court   which   had   the   opportunity   of 






noting   demeanour   of   all   the   witnesses   and   the   accused 










                                                                                20



thought   it   fit   that   life   sentence   would   be   appropriate. 






However, the High Court while enhancing the same from life to 






death, in our view, has not assigned adequate and acceptable 






reasons.   In our opinion, it is not a rarest of rare case where 






extreme   penalty   of   death   is   called   for   instead   sentence   of 






imprisonment   for   life   as   ordered   by   the   trial   Court   would   be 






appropriate.  






15)    In   the   light   of   the   above   discussion,   while   maintaining 






the   conviction   of   the   appellant-accused   for   the   offence   under 






Section   302   IPC,   award   of   extreme   penalty   of   death   by   the  






High   Court   is   set   aside   and   we   restore   the   sentence   of   life  






imprisonment   as   directed   by   the   trial   Court.   The   appeal   is 






allowed in part to the extent mentioned above.                         










                                            ..........................................J. 


                                            (P. SATHASIVAM) 








                                            ..........................................J. 


NEW DELHI;                                    (DR. B.S. CHAUHAN) 


SEPTEMBER 30, 2011.                     










                                                                               21

suit for possession counter case for injunction= As second respondent had looked after their mother and their property, the appellants agreed for her continuing as licencee for some time. She did not however vacate=Normally this Court will not, in exercise of jurisdiction under Article 136 of the Constitution of India, interfere with finding of facts recorded by the first appellate court, which were not disturbed by the High Court in second appeal. But what should happen if the first appellate court reverses the findings of fact recorded by the trial court by placing the burden of proof wrongly on the plaintiffs and then holding that the plaintiffs did not discharge such burden; or if its decision is based on evidence which is irrelevant or inadmissible; or if its decision discards material and relevant evidence, or is based on surmises and conjectures; or if it bases its decision on wrong inferences drawn about the legal effect of the documents exhibited; and if grave injustice occurs in such a case on account of High Court missing the real substantial question of law arising in the appeal and erroneously proceeds on the basis that the matter does not involve any question of law and summarily dismisses the second appeal filed by the= The fact that was proved was possession of suit portions which was not in dispute, but not tenancy in regard to the suit portions, which was in dispute. In the absence of any documentary evidence showing the tenancy or payment of rent, the evidence of PWs.1 and 2 is more trustworthy and probable than the uncorroborated interested evidence of DW1. (The evidence of DWs. 2 and 3 does not have any bearing on the issue of tenancy claimed by respondents). We therefore find that the judgments of the first appellate court and the High Court are unsustainable and the finding of the trial court that respondents are gratuitous licencees was correct and justified.

                                             1






                                                                              Reportable 




                     IN THE SUPREME COURT OF INDIA




                       CIVIL APPELLATE JURISDICTION




                    CIVIL APPEAL NOS. 8400-8401 OF 2011


                  [Arising out of SLP (C) Nos. 6095-6096/2009]








Dnyaneshwar Ranganath Bhandare & Anr.                                ... Appellants




Vs.




Sadhu Dadu Shettigar (Shetty) & Anr.                                 ... Respondents










                                   J U D G M E N T




R.V.RAVEENDRAN, J.










       Leave granted. Parties will be referred by their ranks in the first matter 




arising from the suit for possession in RCS No.278/1993.










2.     The case of appellants is as under : The appellants are brothers and are 




the   owners   of   premises   No.289   (New   No.424)   Gandhi   Chowk,   Vita 




(described   in   schedule   `A'   to   the   plaint   and   referred   to   as   the   `said 




property'). Two rooms in the said property, one measuring 10' 6" x 22' and 




the other measuring 10' x 10' (described the schedules B and C to the plaint 



                                               2






and together referred to as the "suit portions") are the subject matter of the 




dispute. The said property originally belonged to Ranganath Bhandare, who 




was   living   in   the   said   property   with   his   wife   Laxmibai   (mother   of   the 




appellants), two sons (appellants 1 and 2) and a daughter. After the death of 




Ranganath   Bhandare,   the   daughter   got   married   in   1984   and   started   living 




separately.   Appellant   No.2   got   married   in   1985   and   shifted   to   Sangli   in 




connection with his employment in the beginning of 1986. Appellant No.1 




was   away   at   Pune   in   connection   with   his   employment.   Thus   appellants' 




mother Laxmibai who was aged and suffering from several complaints was 




staying   alone   in   the   said   property   from   the   middle   of   1986.   The   second 




respondent (Chhaya) was engaged in or about the year 1985 as a servant to 




look   after   Laxmibai   and   was   allowed   to   reside   in   one   room   as   a   licencee 




without any rent. In November 1986, Laxmibai died. The second respondent 




requested   the   appellant   for   some   time   to   vacate   the   room   stating   that   she 




would leave as soon as she got some alternative accommodation. As second 




respondent had looked after their mother and their property, the appellants 




agreed for  her continuing as licencee  for some  time.  She did not however 




vacate. Taking advantage of the fact that the owners were not around, she 




and   the   first   respondent   (Sadhu)   with   whom   she   had   a   `living-in-




relationship', broke open the door of another room (10' x 10') and occupied 



                                           3






it. Further, first respondent started asserting that he is the tenant of the suit 




portions (two rooms) and filed RCS 114/1993 on the file of the Civil Judge, 




Junior   Division,   Vita,   against   the   first   appellant,   seeking   a   permanent 




injunction. In these circumstances, the appellants filed RCS No.278/1993 for 




possession of the suit portions, contending that respondents were gratuitous 




licencees   regarding   one   room    and   unauthorized   encroachers  in   respect   of 




second   room.   They   also   sought   damages/mesne   profits   for   wrongful 




occupation.










3.     The suit was resisted by the respondents on the ground that the first 




respondent (second defendant) was the husband of second respondent (first 




defendant); that they were in occupation of the suit premises as tenants on a 




monthly rent of `25 from February 1982; that the rent was increased to `60/- 




per   month   from   1988;   that   the   appellants   illegally   disconnected   the 




electricity supply to the suit portions on 25.8.1991 and tried to forcibly evict 




the respondents; that the first respondent had therefore lodged a complaint 




under section 24(4) of the Bombay Rents Hotel, and Lodging House Rates 




Control Act, 1947 (`Rent Act' for short) and filed an application for fixation  




of standard rent under section 11 of the Rent Act. They also alleged that the 




appellants prevented them from carrying out repairs to the premises which 



                                              4






was in a dilapidated condition and were threatening to evict them from the 




premises.   Therefore,   the   first   respondent   filed   a   suit   for   permanent 




injunction   in   RCS   No.114/1993   to   restrain   the   first   appellant   from 




dispossessing him from the premises without due process of law. 










4.      The   suit   for   permanent   injunction   (RCS   No.114/1993)   filed   by   first 




respondent  was resisted  by the first  appellant. The  averments in the plaint 




and   written   statement   in   the   suit   for   injunction   were   the   same   as   the  




averments   in   the   written   statement   and   plaint   respectively   in   the   suit   for 




possession filed by appellants.










5.      Both suits were tried together. The trial court decreed both the suits by 




a common judgment dated 17.7.2002. The trial court held that the appellants 




are   the   owners   and   they   have   established   that   second   respondent   (first 




defendant) was their licencee. The trial court after exhaustive consideration 




of the evidence held that the respondents had failed to prove that they were 




residing in the suit premises as tenants from February, 1982 on a monthly 




rent of  `25 or that they were paying the rent at the rate of  `60/- per month 




from the year 1988. The trial court also held that the second respondent was 




in   possession   of   the   two   rooms   as   a   licencee   with   the   permission   of 



                                               5






Lakshmibai and had continued in occupation as gratuitous licencee and was 




not   a   tenant;   and   that   the   first   respondent   had   not   trespassed   or   forcibly 




occupied   the   second   room   but   was   residing   in   the   suit   portions   with   the 




licensee   (second   respondent)   as   her   husband.   As   the   respondents   were 




licensees   and   the   licence   had   been   revoked,   the   trial   court   held   that   the 




appellants   were   entitled   to   possession   of   the   suit   portions.   Consequently, 




RCS No.278/1993 for possession filed by the appellants was decreed and the 




respondents were directed to deliver vacant possession of the suit portions 




within sixty days. The trail court also directed a separate enquiry regarding 




damages  and mesne   profits.   As  the claim  for  tenancy  was  rejected,  but  as 




respondents were in occupation of two rooms, the trial court decreed RCS 




No.114/1993 filed by first respondent in part, and directed that the appellants 




shall not evict the first   respondent otherwise than in accordance with law. 




As   the   trial   court   has   granted   a   decree   for   possession   simultaneously,   the 




decree in RCS No.114/1993 was academic.










6.      Feeling   aggrieved   respondents   1   and   2   filed   Regular   Civil   Appeal 




No.180/2002   against   the   decree   for   possession.   Respondent   No.1   filed   a 




Regular   Civil   Appeal   No.198/2002   against   the   dismissal   of   his   suit   for 




injunction.   The   first   appellate   court   (District   Court,   Sangli)   allowed   both 



                                             6






appeals by its common judgment dated 13.12.2007. The first appellate court 




formulated   the   following   five   questions   for   consideration   :     (i)   Whether 




defendants in RCS No.278/93 are in unauthorized and illegal possession by 




making an encroachment in suit property?   (ii) Whether the suit property-B 




& C portions was given to Chhaya as a gratuitous licensee in since 1986? 




(iii)   Whether   the   possession   of   schedules   B   &   C   properties   by   Sadhu   is 




referable   to   any   legal   right?     (iv)   Whether   the   possession   of   Sadhu   was 




illegally obstructed by the owners? (v) What relief? 










7.     The first appellate court answered the first two points in the negative 




and the third and fourth in the affirmative. The first appellate court held that 




appellants failed to prove that the respondents were gratuitous licensees or 




that they had encroached upon one room. Consequently, it dismissed the suit 




for possession by appellants and decreed the suit for injunction by the first 




respondent.   It   did   not   address   itself   or   decide   whether   respondents   were 




tenants. It held that they had paid some amounts and appellants had failed to 




explain the said payments. 










8.     The second appeals filed by the appellants challenging the judgment 




and decree of the first appellate court were dismissed by the High Court by a  



                                              7






short common order dated 7.10.2008 holding that the finding of fact by the 




lower appellate court that the respondents were not gratuitous licensees did 




not   call   for   interference   and   no   substantial   question   of   law   arose   for 




consideration.   The   said   common   judgment   is   under   challenge   in   these 




appeals by special leave.










9.      Normally this Court will not, in exercise of jurisdiction under Article 




136 of the Constitution of India, interfere with finding of facts recorded by 




the   first   appellate   court,   which   were   not   disturbed   by   the   High   Court   in 




second appeal. But what should happen if the first appellate court reverses 




the findings of fact recorded by the trial court by placing the burden of proof 




wrongly   on   the   plaintiffs   and   then   holding   that   the   plaintiffs   did   not 




discharge   such   burden;   or   if   its   decision   is   based   on   evidence   which   is 




irrelevant   or  inadmissible;   or   if  its  decision   discards  material   and   relevant 




evidence, or is based on surmises and conjectures; or if  it bases its decision 




on   wrong   inferences   drawn   about   the   legal   effect   of   the   documents 




exhibited; and if grave injustice occurs in such a case on account of High 




Court missing the real substantial question of law arising in the appeal and 




erroneously   proceeds   on   the   basis   that   the   matter   does   not   involve   any 




question   of   law   and   summarily   dismisses   the   second   appeal   filed   by   the 



                                                8






appellant? In this context we may remember that the legal effect of proved 




facts   and   documents   is   a   question   of   law.   (See  Dhanna   Mal     vs.   Rai  




Bahadur   Lala   Moti   Sagar  [AIR   1927   P.C.   102]   and  Gujarat   Ginning   &  




Manufacturing Co. Ltd. vs. Motilal Hirabhai Spinning & Manuacturing Co.  




Ltd. [AIR 1936 PC 77]. In such cases, if the circumstances so warranted, this 




court may interfere in an appeal by special leave under Article 136. Let us  




therefore   consider   whether   circumstances   in   this   case   warrant   such 




interference. 




                             




10.     Two   suits   were   tried   together.   In   both   the   suits   (suit   for   possession  




filed by the appellants,  and suit for permanent  injunction filed by the first 




respondent),   the   trial   court   framed   issues   placing   the   burden   on   both   the 




plaintiff and defendants. The appellants were required to prove whether the 




suit portions were given to second respondent as a gratuitous licensee. The 




respondents were required to prove that they were in occupation from 1982 




as   tenants,   initially   by   paying  `  25/-   per   month   as   rent   up   to   1988   and 




thereafter at the rate of ` 60/- per month. These issues were proper as it was 




evident   from   the   pleadings   that   respondents   were   in   possession   of   suit 




rooms,   and   appellants   claimed   that   the   respondents   were   licencees   and 




respondents claimed that they were tenants, but admitted that there was no 



                                                 9






document evidencing tenancy/lease or payment of rent. The entire evidence 




was   analysed   in   detail   by   the   trial   court,   leading   to   the   findings   that   the 




respondents were in occupation of the suit portions as gratuitous licensees 




and   the   respondents   failed   to   prove   that   they   were   tenants   paying   rent.   In 




appeals filed by the respondents, the court wrongly shifted the entire burden 




of proof on the appellants and held that the appellants had failed to prove  




that   respondents  were   gratuitous  licensees   and   consequently   dismissed   the 




suit   for   possession   filed   by   the   appellants.   As   noticed   above,   admittedly  




there was no lease deed or tenancy agreement to evidence the tenancy; nor 




were   there   any   receipts   for   payment   of   any   rent.   The   first   appellant   had 




given evidence on oath that respondents were gratuitous licensees and they 




had never paid any rent or other charges and his evidence was corroborated 




by   a   neighbour   (PW2).   In   the   circumstances,   the   burden   was   on   the 




occupants (respondents) to establish that they were tenants and not licensees. 




But   the   first   appellate   court   chose   to   wrongly   place   the   burden   upon   the 




appellants.   The   first   appellate   court   failed   to   record   any   finding   that   the 




respondents were the tenants. The documents produced by the respondents 




which merely showed their possession were wrongly interpreted to hold that 




the appellants failed to prove that respondents were gratuitous tenants. 



                                                 10






11.     The   undisputed   facts   noted   by   the   first   appellate   court   are   :   The 




appellants   are   the   owners   of   the   Premises   No.289   (Schedule   A   property), 




Gandhi   Chowk,   Vita.   The   suit   property   earlier   belonged   to   Ranganath 




Bhandare   (father   of   appellants)   who   died   in   the   year   1979.   Dnyaneshwar 




(the   first   appellant)   was   employed   in   Pune   and   was   away   from   Vita   for 




several years. Lata, the sister of appellants got married and left the premises 




in the year 1984. Mukund, the second appellant got married in 1985 and left 




Vita   and   shifted   to   Sangli   in   the   first   half   of   1986.   Appellants'   mother  




Laxmibai who was staying alone, died in November, 1986. Property bearing  




No.289 consists of a ground floor and first floor. Two rooms described in 




Schedules   B   &   C   to   the   plaint   were   in   the   possession   of   the   second 




respondent Chhaya and the first respondent Sadhu. There was no lease deed 




or   tenancy   agreement   evidencing   tenancy,   nor   were   any   receipts   to   show 




payment of any rent.  It is in this background, that the evidence was required 




to be examined. 










12.     Laxmibai was an old lady. The second appellant who was staying with 




his   aged   mother   in   1985,   was  obviously   not   able   to   look   after   her.   In   the  




beginning   of   1986,   he   left   Vita   in   connection   with   his   employment. 




Laxmibai was all alone from then till her death in November, 1986. Seen in 



                                                  11






this   background,   the   evidence   of   first   appellant   (PW1)   that   the   second 




respondent was appointed as a servant to look after his mother in the year 




1985   and   was   permitted   to   stay   in   a   portion   of   the   premises   free   of   rent, 




corroborated by the evidence of the neighbour (PW2) and the fact that there 




is absolutely no evidence of tenancy, that when his mother Laxmibai died, 




second respondent sought permission to continue living in a portion of the 




property till she got some alternative accommodation, and that the appellant 




agreeing   for   the   same,   particularly   as   that   also   solved   the   problem   of 




someone   looking   after   the   property   as   care   taker,   becomes   very   probable. 




His   evidence   is   not   shaken   in   cross-examination.   There   is   nothing   to 




disbelieve the evidence of PW1 and PW2. 










13.     According   to   the   appellants,   the   first   respondent   was   not   legally 




married   to   second   respondent   and   was   a   live-in-partner.   According   to   the 




respondents   they   were   a   married   couple.   Whether   they   were   a   married 




couple or whether they were merely living together, is not very relevant for 




the   decision   in   this  case,   as   the   fact   that   both   were   living   in   the   schedule 




portion   was   not   disputed.   Further   one   of   the   witnesses   of   respondents   -- 




G.S.Thakale   (DW3)   gave   evidence   that   second   respondent   and   first 




respondent were his tenants in the year 1980 and that they got married some 



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time   in   the   year   1981   and   that   thereafter   they   shifted   to   the   premises   of  




appellants, demonstrates that at some point of time, second respondent and 




first respondent were living together without marriage. DW3 also admitted 




that   he   did   not   have   any   personal   knowledge   about   the   solemnization   of 




marriage of second respondent with first respondent. However all the courts 




proceeded on the basis that they were married in the absence of any evidence 




to rebut the claim of Respondents 1 and 2 that they were a married couple.








14.     None of the owners was staying at Vita and according to appellants 




second  respondent continued  to stay  in a portion of Premises  No.289 as a 




gratuitous licencee even after November 1986 and the first respondent was 




also   living   with   her.     Admittedly,   there   was   no   lease   deed   or   tenancy 




agreement   between   the   parties.   No   rent   receipts   are   produced   by   the 




defendants. No document was produced by respondents which showed that 




they  were tenants  of  the suit  portions (B  & C  schedule   properties)  or  that 




they   were   paying   any   rent   to   the   owners   of   the   property.   As   it   was   an 




admitted   position   that   there   was   no   document   evidencing   the   tenancy   or 




evidencing payment of any rent, the trial court also placed the burden upon 




the defendants to prove that they were residing in the premises as tenants. 




The trial court believed the evidence of PW1 supported by the evidence of 




the neighbour (S.B.Bhandare) (PW2), that Laxmibai was ailing and to look 



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after   her   and   to   look   after   the   house,   Laxmibai   had   engaged   the   second 




respondent as a maid  servant and given her a place to stay free of cost as 




licencee and that the first respondent was also staying with her and neither of 




them had ever paid any rent to appellants or Laxmibai. 










15.       The   trial   court   considered   the   following   documentary   evidence 




produced   by   the   respondents   to   establish   that   they   were   the   tenants   :   (a) 




Assessment Register extracts (Ex. 61 and Ex. 62); (b) Tax paid receipts (Ex.  




63, Exs. 67 to 72); (c) Bank cash deposit challan counter foils (Ex. 64 to Ex. 




66); (d) Electoral roll for 1991 (Ex. 74); (e) Notices through counsel dated 




9.10.1992 and 15.6.1993 (Ex. 75 & Ex.77) with acknowledgments (Ex. 76 & 




Ex.78).     The trial court held that none of the above documents established  




the   claim   of   tenancy   by   the   respondents   and   consequently,   held   that 




respondents   failed   to   prove   that   they   were   in   occupation   of   the   premises 




from February 1982 as tenants on a rent of  `25 per month  from 1982 and 




`60   per   month   from   1988.   The   court   however   held   that   there   was   no 




evidence   to   show   that   Sadhu   broke   open   the   lock   of   10'   x   10'   room   and 




occupied   it   illegally.   The   court   held   that   as   the   evidence   showed   that 




respondents were living as husband and wife and rejected the claim of the 




appellants   that   first   respondent   had   forcibly   occupied   the   premises, 



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particularly as the appellants had not lodged any complaint in regard to such 




illegal occupation. The fact that the respondents were in possession of the B 




& C schedule properties was not in dispute and therefore the evidence that 




was   required   was   evidence   to   show   tenancy   and   not   possession.   The   trial 




court found that the tax receipts were issued in the name of the owners and 




the fact that first respondent had produced some tax receipts merely showed 




that   the   owner   had   sent   the   tax   through   respondents   for   payment   as   they 




were not staying in Vita. In regard to remittances to the Bank, he found that  




stray   remittances   of  `300,  `60   and  `300  did   not  prove  that   they   were   paid 




towards the rent, or that the said payments were made with the knowledge 




and   consent   of   the   appellants.   In   regard   to   the   other   documents,   the   trial 




court   held   that   all   documents   showed   that   the   respondents   were   in 




possession but did not establish any tenancy.








16.     On the very same material (that is Assessment Register extracts, tax 




paid   receipts,   bank   cash   deposit   challans,   Electoral   Roll   and   notices),   the 




first appellate court came to the   conclusion that the case of appellants (in 




the   pleadings   and   evidence),   that   second   respondent   was   inducted   as   a 




licencee   was   not   believable.   Though   the   first   appellate   court   does   not 




anywhere   record   a   finding   that   the   respondents   had   established   that   they 




were  the tenants,   but  concluded  that the  appellants failed  to  give a  proper  



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explanation   in   regard   to   the   documents   produced   by   the   respondents   and 




therefore   their   suit   should   be   dismissed.   We   may   examine   each   of   the 




conclusions purportedly recorded by the first appellate court with reference 




to documents.








Re : Tax paid Receipts (Exs. 63, 67 to 72)








17.    Ex. 63, 67 to 72 are the tax receipts issued by the Vita Municipality 




produced   by   first   respondent   which   showed   that   the   taxes   for   the   period 




1989-90   upto   1992-1993   were   paid   in   the   name   of   the   registered   owner 




Ranganath Bhandare. The first appellate court held that the appellant has not 




explained   these   receipts.   But   if   the   respondents   were   licencees   in   the 




premises, looking after Laxmibai and the premises, there is nothing strange 




in the appellants who were not living at Vita, to send the tax amount through 




respondents, for payment to the Municipal authorities. It is possible that first 




respondent   was   planning   from   1988-89   onwards   to   create   some   kind   of 




evidence to claim tenancy and had therefore retained the tax receipts. What 




is significant is that these receipts do not show that the amounts paid as taxes 




were paid by the first respondent were from his personal funds. Further the 




case of the first respondent is that he was a tenant from 1982 to 1988 paying 




`25/- p.m. and thereafter `60/- per month. It is not the case of the respondents 



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that in addition to rent, they were required to pay the municipal  taxes and 




that they were therefore paying the municipal taxes. If payment of taxes was 




part   of   the   consideration   for   the   tenancy,   there   is   no   explanation   by 




respondents as to why they did not pay the taxes for earlier years.








Re : Assessment Register Extracts (Exs.61 and 62)










18.     The respondents relied upon the assessment register extracts (Exs. 61 




and   62)   pertaining   to   the   years   1988-89   to   1991-92   in   regard   to   property 




No.289. Appellants have relied upon assessment Register extract (Ex. 4) and 




CTS   extracts   (Exs.   5   to   8).   These   documents   show   that   premises   No.289 




originally stood in the name of Ranganath Bhandare as owner and thereafter 




the property was mutated in the names of his legal representatives, namely, 




the   appellants,   their   mother   and   sister.   They   also   showed   that   initially 




Bhanudas   Keshav   Waghmode   was   a   tenant   in   the   said   property.   Ex.   62 




pertaining to the years 1988-89 to 1991-92 showed that apart from Bhanudas 




Keshav Waghmode, first respondent was also an occupant of a portion of the 




premises.










19.     The  fact   that  Bhanudas   Keshav   Waghmode   was   a  tenant   of  another 




portion of premises No.289 is not in dispute. The fact that second respondent 



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and first respondent were also living in premises No.289, has never been in 




dispute.   The   issue   is   whether   they   were   in   occupation   as   tenants   or   as 




licensees. The assessment register extract would not help the respondents to 




establish that they were tenants of a portion of the premises. It will at best  




help them to show that they were occupying a portion of premises No.289. 




The   fact   that   the   name   of   first   respondent   was   introduced   as   an   occupant 




only during the year 1988-1989 belies his case that he was in occupation of 




the suit portions as a tenant from 1982. It only shows that in the absence of 




the   owners,   first   respondent   had   managed   to   get   his   name   inserted   in   the 




municipal records as an occupant.  










Re : Remittances to owner's account (Exs. 64, 65 and 66)








20.     Exs. 64 to 66 produced by first respondent show that he had deposited 




`300, `60 and `360/- on 19.8.1988, 20.11.1991 and 14.3.1989 to the account 




of first appellant with Bank of Karad. The case of the respondents was that 




when Laxmibai inducted them as tenants of the suit portions on a monthly  




rent of `25/-; that they used to pay rent to Laxmibai; that after her death, they 




used   to   pay   rent   to   the   first   appellant;   that   in   1988,   the   first   appellant 




compelled them to increase the rent to ` 60/-; that as both the appellants were 




living   outside   Vita,   the   first   respondent   used   to   deposit   rent   in   the   bank 



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account of the first appellant with Bank of Karad.  The first appellate court 




held   the   fact   that   the   amounts   were   deposited   to   first   appellant's   account 




showed that the appellants had given the account number to first respondent 




and inferred that the said amounts might have been deposited towards rent.








21.     Appellants   have   given   satisfactory   explanation.   They   submitted   that 




the bank account was a non-functional and non-operated account at Vita and 




as no notice of deposit was given, they were unaware of the deposits. They 




submitted  that Bank of Karad went into liquidation and they therefore did 




not even have any record of these payments. They argued that as the second 




respondent was looking after Laxmibai and as respondents were also looking 




after the premises, the respondents would have come to know about the bank 




account of the first appellant and that first respondent, being aware that one 




day or the other, the owners will take action to evict them, had deposited the 




said amounts to create some kind of evidence. It should also be noted that 




the   respondents  did   not  send   any   communication   informing   the  appellants 




about the deposits to the first appellant. Nor did the challans showed that the 




deposits were being made towards rent. These factors when coupled with the 




following three circumstances show that the deposits were not bonafide: (i) 




There were no rent receipts from either Laxmibai or from the appellants; (ii) 




the respondents did not choose to send the rents by postal money orders; and 



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(iii)   there   is   no   explanation   as   to   non-deposit   of   the   alleged   rents   for   the 




earlier   period.   These   receipts   cannot   be   relied   upon   to   support   the 




uncorroborated   oral   testimony   of   DW-1   (Sadhu)   that   the   same   were 




deposited towards rent.   










Re : Electoral Roll (Ex. 74) :










22.     The Electoral Roll (Ex. 74) showed the respondents as husband and 




wife  and  they  were  staying  in  the  premises   No.289  in  the   year  1991.  The 




appellate court held that Ex. 74 showed the respondents as the residents of 




premises No.289 in the year 1991 and if the second respondent was a mere  




licensee and if there was no marriage solemnized between her and the first 




respondent, the name  of first respondent would not have been recorded as 




husband in Ex. 74. From this the first appellate court inferred that the second 




respondent was not a mere licensee and appellants had failed to prove that 




the first respondent was not the husband of the second respondent.








23.     The   Electoral   Roll   will   not   show   whether   a   person   is   occupying   a 




premises as a tenant or as a licencee. It may at best show that the person was  




residing in the premises. The fact that both respondents were residing in the 




premises   had   never   been   disputed.   If   they   represented   that   they   were 



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husband   and   wife,   the   electoral   roll   will   reflect   the   same.   The   inference 




drawn   by   the   first   appellate   court   from   the   electoral   roll,   that   second 




respondent was not a mere licencee, is totally illogical and unsustainable.








Re : Notices (Exs. 75 to 78)








24.    The   first   appellate   court   found   that   notices   dated   9.10.1992   and 




15.6.1993 issued by the respondents were not replied by the appellants and 




draws an inference therefrom that the averments therein should be true. But 




by then the litigations were already pending. The petition for fixation of fair  




rent   had   been   filed   on   3.1.1992   (Application   No.1/1992).   A   criminal   case 




under section 24(4) of Rent Act had also been filed (Crl. Case No.6/1992). 




Thereafter,   in   1993,   suits   were   filed   by   the   second   defendant   in   RCS 




No.114/1993   and   by   the   appellants   in   RCS   No.278/1993.   In   view   of   the 




pending litigation, non issue of the replies to the notices cannot be treated as 




an admission of the averments in the notices. 








Re : Application for fixation of standard rent








25.    The first respondent filed a petition for fixation of standard rent in the 




year 1992 wherein he had claimed to be the tenant. The first appellate court  




held that as this was not controverted, the allegations therein should be true. 



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The fact that the first respondent filed an application for determination of the 




standard rent is not disputed. But it is also not in dispute that the appellants 




filed a counter in the said proceedings wherein they clearly stated that the 




first respondent had no connection with the property and the premises was 




not   given   to   him   on   rent   or   on   any   other   understanding   and   that   the   first  




respondent was falsely claiming tenancy with the help of second respondent. 




It may be mentioned that the said petition for fixation of standard rent was 




not pursued by the first respondent and ultimately it was dismissed for non-




prosecution on the ground that the first respondent had failed  to prosecute 




the   matter   from   1998.   Therefore,   filing   of   the   application   for   fixation   of 




standard rent does not assist the respondents in proving tenancy.










Conclusion








27.     It is thus seen that none of the documents produced or relied upon by 




respondents evidenced tenancy or payment of rent. The documents no doubt 




established that respondents were in possession of a portion of the premises 




No.289, but that fact  was never in dispute. It should be noted that though 




respondents submitted that they occupied the suit portions in 1982, they did 




not prove occupation of the suit portions from 1982. The first appellate court 




erroneously   held   that   the   appellants   had   failed   to   offer   satisfactory 



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explanation   regarding   the   documents   relied   upon   by   the   respondents   and 




held that therefore the suit should be dismissed. The first appellate court has 




not   recorded   any   finding   that   these   documents   produced   by   respondents 




established   a   tenancy.   In   fact   as   noticed   above,   there   is   no   finding   in   the 




entire judgment that the respondents had proved that they were the tenants. 




The documents relied upon by respondents do not establish a tenancy. The 




trial   court   found   that   none   of   these   documents   established   tenancy.   The 




appellants  had  explained   all  documents  relied  upon  by   the  respondents  by 




demonstrating that they only prove occupation (which was not disputed) but 




not   tenancy.   When   there   was   nothing   more   to   explain,   the   first   appellate 




court   held   that   appellants   failed   to   explain   those   documents   and 




consequently   failed   to   establish   that   respondents   were   licencees.   The   first 




appellate court inferred from documents which disclosed mere occupation of 




a portion of the house and documents which showed some payments which 




cannot be linked to rent, that appellants  failed to prove  that the occupation 




by respondents was as gratuitous licensees. It did not however infer from the 




documents that there is a tenancy. The entire reasoning is therefore unsound. 




In spite of this legal lacunae, the High Court did not interfere on the ground 




that no question of law was involved. It failed to notice that the inferences  




and  legal   effect  from proved  facts  is  a  question  of  law  and  the  inferences 



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drawn   by   the   first   appellate   court   were   wholly   unwarranted.   The   fact   that 




was proved was possession of suit portions which was not in dispute, but not 




tenancy in regard to the suit portions, which was in dispute. In the absence  




of any documentary evidence showing the tenancy or payment of rent, the 




evidence   of   PWs.1   and   2   is   more   trustworthy   and   probable   than   the 




uncorroborated interested evidence of DW1. (The evidence of DWs. 2 and 3 




does not have any bearing on the issue of tenancy claimed by respondents). 




We therefore find that the judgments of the first appellate court and the High 




Court are unsustainable and the finding of the trial court that respondents are 




gratuitous licencees was correct and justified. 










28.     Therefore, we allow this appeal, set  aside the  judgment  of the High 




Court and the first appellate court and restore the decree for possession of 




the suit portions granted by the trial court.     Parties to bear their respective 




costs.      








                                                       ................................J.


                                                       (R.V. Raveendran)










New Delhi;                                             .............................J.


September 30, 2011.                                    (A.K. Patnaik)