Sukhdev S/O Surjan Satyasevak vs Lahanabai W/O Pentar Satyasevak
2022 Latest Caselaw 9759 Bom

                                                        2sa289.13.odt
                               1

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH AT NAGPUR

               SECOND APPEAL NO. 289 OF 2013

APPELLANT:      Sukhdev Surjan Satyasevak,,
Org.Deft        aged about 69 years, Occ. Labourer
                R/o. Marartoli, Tah. Dist. Gondia.

                          ...VERSUS...

RESPONDENTS:       Lahanabai w/o Pentar Satyasevak
                   (deceased thr L.Rs.)

                1A.Pruthviraj Penter Satyashewak (son)
                   (deceased) thr L.Rs.

                i. Smt. Manika wd/o Prithviraj Satyashewak,
                   (wife), aged about 65 years, Occ.
                   Household.

                ii. Sadanand s/o Prithviraj Satyashewak,
                    (son) (deceased) thr L.Rs.

                iia. Smt.Ratnamala wd/o Sadanand Satyashewak,
                     (wife) aged about 45 years, Occ.
                     Household.

                iib. Prashant s/o Sadanand Satyashewak,
                     (son) aged about 22 years, Occ.
                     Student (legal heir of Sadanand Prithviraj
                     Satyasevak,

                iii Devanand Prithviraj Satyashewak
                    aged about 45 years, Occ. Labourer

                iv. Vishvanand s/o Prithviraj Satyashewak,
                    aged about 43 years, Occ. Labour (legal
                    heir of Prithviraj Satyashewak
                                                                                2sa289.13.odt
                                              2

                              All r/o. Ashok Nagar, Gudhiyari,
                              Raipur (Chattisgarh State)

                         1B Smt. Bevendra Beniram Satdeve
                            (daughter), aged about 50 years,
                            Occ. Household. R/o. Shri Nagar,
                            Near Buddha Vihar, Kali Mata Mandir,
                            Gondia, Tah. & Dist. Gondia.

                          1C Dharamdeep s/o Penter Satyashewak,
                               (son) Aged about 48 years, Occ. Labour,
                               R/o. Kumbharni Nagar, Behind Dragon
                               Palace, Kamptee, Tah. Kamptee, District-
                               Nagpur.
----------------------------------------------------------------------------------------------
                 Shri N.M.Jibhkate, Advocate for the appellant.
                 Mr. R.K.Borkar, Advocate for respondents
----------------------------------------------------------------------------------------------
                                       CORAM : AVINASH G. GHAROTE, J.

                                       DATE          : 26/09/2022.


1]               Heard Mr. Jibhkate, learned counsel for the appellant/

defendant        and      Mr.     Borkar,      learned       counsel       for     L.Rs     of

respondent/original plaintiff.



2]               The original plaintiff had filed a suit for possession

being RCS No. 140/2005, on the basis of having acquired title to the

suit property. The learned Trial Court by the judgment dated

2.2.2009 (page 19) had dismissed the suit, based upon the evidence

of the original Plaintiff Lahanabai, according to which the defendant 2sa289.13.odt

was inducted as a gratuitous licensee in the premises in question,

which according to the learned Trial Court stood controverted by the

defendant in view of his evidence that he was in occupation of the

property in question since last 40 years (pages 28 & 29). The learned

Appellate Court by the impugned judgment dated 9.1.2013

(page 14) has allowed the appeal and granted a decree for

possession.

3] The second appeal was admitted on 15.10.2013 on the

following substantial questions of law:

(1) Whether the first appellate Court fell in error in recording a finding that the appellant was residing in the suit property as a permissive occupier and that he was not the tenant of Mukabai?

(2) Whether the finding recorded by the first appellate Court that the respondent is entitled to recover possession from the appellant is perverse, as being not based upon the evidence before the Court?

2sa289.13.odt

4] I have heard Mr. Jibhkate, learned counsel for the

appellant as well as Mr.Borkar, learned counsel for Respondent and

with their assistance, have perused the pleadings in the suit as well

as the evidence led.

5] The plea that the appellant/defendant was a tenant of

the original owner Mukabai has not been proved by him, in the

teeth of the plea by the plaintiff that he was the permissible occupier

being the brother of her husband. The factum of tenancy is one,

which is eminently provable by documents, however, there is not a

single document, either by way of a rent receipt or any entry in the

municipal record, regarding the status of the appellant/defendant

regarding the occupation of the premises in question. Though the

learned Trial Court had held that the plaintiff was the owner of the

property in question, it declined to grant a decree, only on the

ground that the plaintiff in her cross examination claimed ignorance

as to whether the defendant was paying any rent to Savitribai and

after her to Hiralal. The ignorance in respect of such a situation

cannot be deemed to be admission on part of the plaintiff regarding

the status of the defendant as that of a tenant, which was being 2sa289.13.odt

pleaded by the defendant. Even the evidence of PW-2 is of no

assistance to the defendant/appellant, for the reason that she makes

a categorical statement that after her marriage she was not aware of

the affairs in respect of the suit property. In fact, the defendant

having claimed that he was the tenant and not the permissive user,

which position could be evinced from documents, having failed to

place them on record, the learned Appellate Court rightly rendered a

finding against him.

6] That apart, though the defendant/appellant claimed that

he was paying the rent to Hiralal, he did not examine Hiralal to

substantiate this contention. Even in his evidence, the defendant

does not claim to have paid any rent to the plaintiff. Rather on the

contrary, the defendant had set up a plea that the suit property was

bequeathed to him by one Beniram, his brother in law by a Will

dated 24.3.2002, which plea he had failed to prove. In the cross

examination, he categorically states that the plaintiff Lahanabai was

not the owner of the property in question at all. This being the

position, in my considered opinion, the overall position reflected

from the pleadings as well as the evidence on record and any lack of 2sa289.13.odt

material placed by the defendant on record to indicate that he had

ever paid any rent to Mukabai in the first place and thereafter to

Hiralal, the substantial questions of law framed on 15.10.2013 are

answered in the negative and the second appeal is dismissed. No

costs.

JUDGE

Rvjalit

Digitally sign byRAJESH VASANTRAO JALIT Location:

Signing Date:28.09.2022 10:45