Parshuram Mallappa Bijjargi vs Sou.Sushila Baswaraj Pattangere ...
2021 Latest Caselaw 2387 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                        SECOND APPEAL NO. 221 OF 2018

 Parshuram Mallappa Bijjargi                     ..Appellant
      Vs.
 Sushila Basavraj Pattangere                     ..Respondent

                                      ----

 Mr. R. S. Alange, for the Appellant.
 Mr. S. A. Kumbhakoni, for the Respondent.

                                      ----

                                     CORAM : C.V. BHADANG, J.

DATE : 05th FEBRUARY 2021

P.C.

. The challenge in this appeal is to the judgment and order

dated 31/3/2017 passed by the learned District Judge at Solapur in

Civil Appeal No.82/2016. By the impugned judgment, the appeal

filed by the present appellant has been partly allowed.

2. The brief facts necessary for the disposal of the appeal may be

stated thus-

That the respondent (plaintiff) filed RCS No.1277/2012

against the appellant (defendant) for possession and mesne profit

etc. of the suit property. The property in dispute happens to be

C.T.S. No.85-86 situated at Solapur alongwith total eight rooms, out

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of which four rooms are constructed in cement and bricks which is a

load bearing structure and remaining four are in the form of

corrugated iron sheet sheds. There is a latrine and bath room

constructed in the said property. The respondent purchased the said

property in the year 1983-84. At that time, there was only one room

in the form of tin shed in the suit property. At the relevant time, the

respondent was residing at Krushi Nagar, Hotgi Road, Solapur

alongwith her family. After the purchase, the respondent

constructed the four rooms having a slab somewhere in the year

1999. It is the case made out in the plaint that one Shivanand

Hunnur was allowed to reside in the two rooms in the form of a

shed in order to look after the construction. After the completion of

the construction, the respondent went to reside in the suit property

when Shivanand Hunnur had surrendered the possession of the two

kaccha rooms to the respondent. It is further case made out that the

husband of the respondent who was serving in the Maharashtra

State Electricity Distribution Company Limited (MSEDCL) retired in

the year 2001-02 after which her family had decided to settle down

at Bangalore in the year 2003. It is contended that at that time, the

appellant who is a nephew of Shivanand Hunnur represented to the

respondent that he will look after the suit property and would

vacate the same on demand. It is thus contended that the appellant

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was permitted to reside in two rooms in the form of sheds in the

year 2003 as a care-taker. It is contended that the respondent and

her son used to visit the suit property. However, in April 2009 when

the respondent had decided to come back to Solapur, it was noticed

that the appellant after vacating the two rooms in the form of a shed

had taken possession of two rooms having a slab after breaking open

the lock. It is contended that the respondent were intending to

report the matter to the police however, the appellant requested that

he will vacate the two rooms within two months. The respondent

however, failed to abide by the same. It is the further case that the

appellant issued a notice to the respondent on 16/6/2009 which

was replied to by the respondent on 19/11/2009. The respondent

sought possession of the two rooms having slab alongwith damages.

It is contended that in January 2010 when the respondent had been

to Solapur and visited the suit site, it was found that the appellant

has taken the possession of the remaining two pucca rooms also. It

is in these circumstances that the suit came to be filed for possession

of the four pucca rooms having slab roof alongwith damages etc.

3. The suit was resisted on behalf of the appellant. It was

contended that the appellant had obtained the land C.T.S. No.85-86

admeasuring 35 x 35 sq. meters on rent at the rate of Rs.150/- per

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month in the year 1992. In short, according to the appellant, he was

in possession of the suit plot from the year 1992 as a tenant of plot

No.85-86. It was contended that the appellant had erected the tin

sheds in the year 1992 and constructed the four pucca rooms

alongwith latrine and bath room in the year 1999 and the appellant

was residing in the suit property alongwith family. As the space was

insufficient, the appellant erected two more rooms in the form of

sheds. It was contended that although the electricity connection and

the tax registration was in the name of the respondent, it was the

appellant who was paying the electricity charges as well as the

municipal taxes. It was contended that the appellant had incurred

expenses of Rs.4 Lakhs over the said construction.

4. On the basis of the rival contentions, the learned Trial Court

framed in all ten issues including the issue on limitation.

5. The respondent examined herself and produced a power of

attorney alongwith the tax receipts and electricity bills etc.

6. The appellant examined himself alongwith Gaurishankar

Hunnur (D.W.2), Akbar Attar (D.W.3), Mehboob Shaikh (D.W.4) and

produced a letter from the Corporation alongwith the electricity bills

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and the copy of the Aadhar Card and the Birth extract (Exh.124, 125

and 126) etc.

7. The learned Trial Court answered Issue No.1 in the affirmative

and the Issue No.2 in the negative, thereby holding that the

appellant was a care-taker in the suit property and not a tenant. In

that view of the matter, by a judgment and decree dated 29/2/2016,

the learned Trial Court decreed the suit in respect of the eight rooms

and directed inquiry into future mesne profits.

8. Feeling aggrieved, the appellant challenged the same before

the learned District Judge, in Civil Appeal No.82/2016. The First

Appellate Court framed the following points for determination.

POINTS

1. Whether the plaintiff proves that the defendant was merely licensee in capacity as catetaker ?

2. Whether defendant proves that he is tenant of the suit premises ?

3. Whether the defendant proves that he had made permanent construction of 8 rooms on the suit property with consent of plaintiff ?

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4. Whether the plaintiff is entitled for possession of the four rooms as prayed ?

5. Whether the plaintiff is entitled for mesne profit ?

6. Whether the impugned judgment and decree requires any interference ?

7. What order ?

9. The learned First Appellate Court concurred with the Trial

Court, holding that the appellant was a care-taker and not a tenant,

however, partly modified the decree of the Trial Court restricting it

to the four pucca constructed rooms. Feeling aggrieved, the

appellant is before this Court.

10. I have heard Mr. Alange, the learned counsel for the appellant

and Mr. Kumbhakoni, the learned counsel for the respondent. With

the assistance of the learned counsel for the parties, I have gone

through the record.

11. It is submitted by the learned counsel for the appellant, that

there is enough oral and documentary evidence to show that the

appellant alongwith his family was residing in the suit property from

the year 1992 as a tenant. The learned counsel has referred to the

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birth certificate of the three children, in order to submit that at the

time of their birth, the appellant was residing in the suit property.

It is submitted that the respondent did not issue any notice. It was

only the appellant who had issued a notice to which a reply was

filed by the respondent seeking possession of only two rooms. It is

submitted that the appellant is the tenant of the open plot from the

year 1992 as per oral agreement. It is submitted that although the

tax receipts and the electricity bills are in the name of the

respondent, it was the appellant who was paying the electricity

charges as well as municipal taxes. It is submitted that the

construction on the suit property was made by the appellant which

would be evident from the evidence of the appellant as well as the

mason. It is submitted that there is no termination of the tenancy

and in the absence thereof, no decree for possession could have been

passed. It is submitted that the Civil Court was not competent to

decide the issue whether the appellant was a tenant or otherwise.

12. The learned counsel for the respondent has supported the

impugned order. It is submitted that the appeal does not raise any

substantial question of law. It is submitted that there are concurrent

findings of fact, properly recorded by the Courts below. It is

submitted that there is absolutely no evidence to show that the

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appellant was a tenant of the open plot. It is submitted that the

appellant was a mere care-taker and therefore the question of

termination of any alleged tenancy does not arise.

13. I have carefully considered the rival circumstances and the

submissions made.

14. It is not disputed that the respondent had purchased plot

Nos.85-86 somewhere in the year 1983-84. It is also not disputed

that initially one Shivanand Hunnur (who is the maternal uncle of

the appellant) was residing in the suit property in two rooms in the

form of a shed. According to the appellant, Shivanand was looking

after and supervising the construction effected by the respondent,

after the purchase of the plot. According to the respondent,

construction was made from the year 1991-92. The case made out

by the appellant is that he is tenant of the open plot as per oral

agreement. However, there is absolutely no evidence to support the

case of tenancy. As noticed earlier, the tax receipts and the

electricity bills are in the name of the respondent. There are no rent

receipts. It is also not the case that the respondent was refusing to

pass receipts. In my considered view, once the Trial Court as well as

the First Appellate Court has concurrently found that the appellant

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was a mere care-taker, the question of want of jurisdiction cannot

arise.

15. The First Appellate Court has found that the case of the

appellant is not acceptable for the reason that no prudent person

would spend more than Rs.4,50,000/- in the year 1992 to 1999 for

construction without safeguarding his interest by getting a

document executed evidencing the tenancy. There is also no reason

why the appellant obtained the electricity connection in the name of

the respondent and the property is registered in the name of the

respondent for the purpose of municipal taxes.

16. I have carefully gone through the evidence in this regard and

no exception can be taken to the finding of fact, that the appellant

was a mere care-taker in the suit property. Reliance placed on the

birth certificate (Exh.124 to 126) is misplaced. Even assuming that

the appellant was residing in the suit property from the year 1992

that itself does not show that he was residing as a tenant. It is

necessary to note that even according to the respondent Shivanand

Hunnur who is a maternal uncle of the appellant was residing in the

suit property from the year 1992. Thus, the possibility of the same

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address being furnished while obtaining the birth certificate of the

children of the appellant cannot be ruled out.

17. The First Appellate Court has also considered the evidence

regarding the alleged construction of the rooms by the appellant and

has noticed that there is a discrepancy in the name of the contractor

in as much as the affidavit was executed by one Mehboob Shaikh

while the name of the contractor is mentioned as Mehboob Fardeen

Shaikh. Quite to the contrary, in the oral evidence his name is

shown as Mehboob Khairuddin Shaikh. The Appellate Court has

also noticed that the demand for receipt of the amount of expenses

was made in the year 1999. However the affidavit is sworn in the

year 2011. The Appellate Court has also considered that the

appellant has failed to show that he had obtained permission or to

get the plan sanctioned from the Corporation for the construction

which was effected in the suit property. In my considered view, all

these are the findings of fact properly recorded on appreciation of

the oral and documentary evidence on record. Once the Courts

below had concurrently found that the appellant was inducted in the

suit property as a care-taker, there is no question of termination of

any alleged tenancy or licence.

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18. In my considered view, the appeal does not raise any

substantial questions of law. The appeal is without any merit and is

accordingly dismissed with no order as to costs. A decree be drawn

accordingly.

C.V. BHADANG, J.

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