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
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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
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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
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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).
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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
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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.
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(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."
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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
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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.
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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
12
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
13
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,
14
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
15
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
16
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
17
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
18
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
19
(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
20
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.
21
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
22
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
23
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)