Shri Harichandra M.Vaishya vs Habib Kasam Punja
2017 Latest Caselaw 8335 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                          CIVIL APPELLATE JURISDICTION

                        Writ Petition NO. 5509 OF 1998

 Shri Harichandra M. Vaishya                                  )
 aged 40 yrs. Indian Inhabitant                               )
 Occupation: Business, Residing at Satpati,                   )
 Taluka Palghar, District: Thane                              )...Petitioner
                                                              (Org.Defendant)
         Versus

 Habib Kasam Punja                                            )
 aged 60 yrs., Indian Inhabitant,                             )
 residing at Satpati, Taluka: Palghar,                        )
 District: Thane.                                             )...Respondent
                                                              (Org.Plaintiff)

 Mr.M.R. Phal for the Petitioner. 
 Mr.Anup N. Deshmukh I/b. Mr.Ashok Gade for Respondent
                                       ----------

                                       CORAM :        G.S.Kulkarni, J.

                                Reserved on    :      24th July,2017

                                  Pronounced on  :   2nd November,2017
                                          ----
 JUDGMENT:

1. In this petition under Article 227 of the Constitution, the

petitioner is the original defendant (tenant) in Regular Civil Suit

No.65 of 1991, filed by the respondent/plaintiff (the landlord),

before the Court of Civil Judge, Junior Division, Palghar, District -

Thane.

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2. The petitioner is aggrieved by the concurrent findings

against him in the judgment of the learned Trial Judge decreeing the

respondent's suit for possession on the ground of arrears of rent, as

confirmed by the learned appellate Judge, by the impugned judgment

and order dated 13th July 1998 passed in Civil Appeal No.215 of

1996.

3. In nutshell, the facts are:-

The suit premises is a wooden gala (cabin) adjacent to

the house of one Alibhai Kasambhai Bhimani, admeasuring 20' x 20'

on the western side, in 'A' ward on Survey No.215 (for short, the 'suit

premises'). The suit premises were let out to the petitioner's father

on a monthly rent of Rs.120/- to conduct the business of selling

vegetables. After the death of the petitioner's father, the respondent

allowed the petitioner to continue to be the tenant of the suit

premises. The agreed rent was Rs.120/- per month. The tenancy

commenced on the first day of the month. The petitioner had paid

rent upto 28th February 1987 and was a defaulter in payment of the

rent till filing of the suit on 26th July 1991.

4. Prior thereto on 29th December1990 the respondent had

addressed a notice to the petitioner demanding arrears of rent and

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also terminated the tenancy. The arrears of rent were of Rs.5640/-.

The petitioner did not comply with the said notice, by either making

payment of the arrears or by handing over vacant possession of the

suit premises to the respondent. The respondent consequently filed

the suit in question, before the Court of Civil Judge, Junior Division,

at Palghar, District Thane.

5. The petitioner appeared in the suit and filed a written

statement inter alia contending that the suit premises (cabin) was not

owned by the respondent and thus the respondent did not have any

right, title and interest in the suit premises. The petitioner denied

that the petitioner's father had taken the suit cabin on rent and had

paid rent to the respondent. The petitioner then contended that the

suit premises were situated on the "gaothan land" which was not

owned by the respondent but by the Grampanchayat. That the

Grampanchayat had recorded the suit cabin on the petitioner's name

and hence the suit as filed by petitioner was false. The petitioner on

this ground denied the relationship between him and the respondent

as that of a landlord and tenant. The petitioner however did not

dispute that after the death of petitioner's father, the petitioner was

paying rent of Rs.120/- per month.

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6. The learned trial Judge considering the rival pleas

framed the following nine issues :-

"1. Does the plaintiff prove that defendant is his tenant ?

2. Does the plaintiff prove that tenancy month commences from 1st day and ends on last day of the same English month ?

3. Does the plaintiff prove that monthly rent is Rs.120/-

an defendant has not paid it since March 1987 ?

4. Does the defendant prove that suit property is owned by him ?

5. Does the defendant prove that suit property is H.No.345 of the defendant ?

6. Whether the plaintiff entitled for possession ?

7. Whether plaintiff is entitled for rent ?

8. What is due from the defendant to the plaintiff ?

9. What order and decree ?"

7. The petitioner and respondent examined themselves.

The parties were also cross-examined on behalf of their opponents.

The learned trial Judge considering the evidence on record answered

issue nos.1 to 3 and issue nos.5 to 8 in the affirmative and against the

petitioner-tenant. The learned trial Judge held that the petitioner

was the tenant of the suit premises as also the petitioner was in

arrears of the rent. The claim of the petitioner that he was the owner

of the suit premises and thus there was no relationship of landlord

and tenant was also negatived. The respondent's suit was decreed by

the learned trial Judge in the following terms:-

"1. The suit of the plaintiff is hereby decreed.

2. Defendant do hand over the vacant possession of the

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suit cabin to the plaintiff.

3. Defendant do pay the arrears of the rent of Rs.4320/-

to the plaintiff.

4. Defendant do pay the costs of the suit to the plaintiff and bear his own if any.

5. Decree be drawn accordingly."

8. The petitioner being aggrieved by the judgment and

decree passed by the learned Trial Judge approached the Court of

Additional District Judge, Palghar, in Civil Appeal No.215 of 1996.

The learned appellate Judge,observed that the petitioner's assertion

that he is the owner of the suit premises was without any substance

as there was no material on record which would indicate the

petitioner's ownership of the suit premises or that of the petitioner's

father. It was held that there existed a relationship of landlord and

tenant between the respondent and the petitioner. The learned

Appellate Judge accordingly dismissed the appeal.

9. The learned Counsel for the petitioner in assailing the

above concurrent findings as recorded by both the courts below,

against the petitioner, would contend that both the courts have erred

in reaching to a conclusion that the petitioner was in arrears of rent

and that the respondent as a landlord was entitled to receive rent. It

is submitted that these findings are contrary to the evidence on

record. It is submitted that the petitioner was not liable to make

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payment of the rent to the respondent as the suit premises were

owned by the petitioner's father. Secondly, it is contended that the "

Grampanchayat Extracts" of payment of tax/fees were sufficient to

indicate that the land was gaothan land, on which the suit

premises/cabin was situated, falsifying the respondent's claim in the

suit. The Grampanchayat extracts were sufficient proof to conclude

that the respondent was not the owner/landlord of the suit premises.

It is submitted that there was no requirement of any other document

of title to be produced and proved by the petitioner, as the said

material as placed on record was sufficient for the learned trial Judge

to dismiss the respondent's suit filed on the ground of arrears of the

rent.

10. On the other hand, the learned Counsel for the

respondent has supported the findings of the Court's below. It is

submitted that no case has been made out to interfere in the

concurrent findings as recorded by the trial Court and the appellate

Court. It is submitted that the petitioner had failed to prove his case

that there was no relationship of landlord and tenant between the

parties. It is submitted that the extract of the Grampanchayat taxes

etc, are not the documents of title, on the basis of which the

petitioner could assert/prove the title/ownership of the suit premises.

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It is further submitted that the respondent did not deny that the

petitioner was paying rent of Rs.120/- per month to the respondent,

thereby accepting the relationship of landlord and tenant. It is thus

submitted that the petition deserves to be dismissed, accepting the

findings recorded by both the courts below.

11. I have heard the learned Counsel for the parties.

With their assistance, I have also perused the judgment of the learned

trial Judge as also the learned appellate Judge. I have also perused

the record and proceedings.

12. It is not in dispute that initially the father of the

petitioner was occupying the suit premises and was paying rent to the

respondent and to that effect was issued rent receipts (Exh.24 and

Exh.25). The petitioner's father expired in the year 1984. Thereafter

the petitioner continued to occupy the suit premises and was paying

rent of Rs.120/- per month. The petitioner had also taken necessary

permission for doing some repairs. It is also not in dispute that the

petitioner paid the rent to the respondent upto 28 th February 1987 for

which rent receipts were issued to the petitioner, for the said period.

The evidence in that regard is at Exh.27, Exh.28 and Exh.29, which

are counter receipts, bearing the signature of the petitioner. Although

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there was sufficient material on record to show that the petitioner as

a tenant was making payment of rent to the respondent, however

strangely the petitioner took a plea in defending the suit, that his

father had not taken the suit premises on rent and had not paid rent,

but was occupying the premises in the capacity as the owner, thereby

denying the relationship of landlord and tenant between the

respondent and the petitioner. To support this plea that the

respondent was not the owner and it was the petitioner's father or

the petitioner, who were the owners of the suit premises, the

petitioner did not bring on record any document of title. This

contention was supported by the petitioner merely relying on

"Grampanchayat tax receipts " which were revenue receipts and not

of any relevance, which can support the plea of ownership of the suit

premises. As rightly observed by the court's below this was surely

not sufficient to reach to a conclusion that the respondent is not the

owner of the suit premises. It is significant that the petitioner had

received the suit notice dated 29th December 1990 terminating the

tenancy, the petitioner never responded to the said notice. Further

the evidence interalia of the rent receipts issued to the petitioner and

as acknowledged by him, and as placed on record on behalf of the

respondent, have remained unchallenged. Thus, there was no

defence worth acceptance, which would persuade the court to reach

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to a conclusion that the petitioner was not in arrears of rent. The

respondent in these circumstances was well entitled for a decree of

possession under Section 13(1) of the Bombay Rent Act.

13. In the above circumstances, I do not find any perversity

in the findings as recorded by the trial Court as also by appellate

Court. The writ petition is devoid of merits. It is, accordingly,

dismissed.

14. The petitioner is directed to hand over the possession of

the suit premises to the respondent within a period of 8 weeks from

today.

15. No order as to costs.

(G.S.Kulkarni, J.)