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