Bombay High Court
Shri.Bhimrao Baban Salunke vs Shri.Rajaram Dinkarrao Pharate on 6 May, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:21460
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 673 OF 2017
WITH
CIVIL APPLICATION NO.1198 OF 2017
Bhimrao Baban Salunke ... Appellant.
Versus
Rajaram Dinkarrao Pharate ... Respondent.
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Mr. Abhijit P. Kulkarni a/w. Mr.Gaurav Shahane, Ms.Sweta Shah, and
Mr.Krushna Jaybhay for the Appellant.
Mr. Pranjal M. Khatavkar i/by Mr. Shriram S. Kulkarni, for the Respondent.
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Coram : Sharmila U. Deshmukh, J.
Date : May 06, 2024.
P. C. :
1. Being dissatisfied by the judgment dated 13th January, 2017
passed by the Appellate Court in Regular Civil Appeal No.57 of 2015,
dismissing the Appeal thereby upholding the judgment of the Trial
Court dated 15th July, 2013 decreeing the suit and dismissing the
counter-claim, the original-Defendant is before this Court. For the
sake of convenience, the parties are referred to by their original status
before the Trial Court.
2. The facts of the case are that Regular Civil Suit No.267 of 2012
was filed seeking recovery of possession and perpetual injunction in
respect of land Gat No.45/13. It was contended by the Plaintiff that he
is the owner of the said land having purchased the same in the year
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2001 and is in possession thereof and when he visited the land on 4 th
March, 2012, he found that the Defendant has started raising
construction over the said land. It was contended that the Defendant
is not having any right over the suit property.
3. The suit came to be resisted by the Defendant and it was
contended that after purchase of the land by the Plaintiff, the suit
property was let out to him and continued as a tenant on monthly rent
of Rs.500/-. A counter-claim also came to be filed seeking injunction
against his dispossession.
4. The parties went to trial. The Trial Court framed the necessary
issues and held that the Defendant has failed to prove that he is in
possession of the property as a tenant. The Defendant did not
participate in the proceedings and did not lead any evidence and
failed to prove his case.
5. As against this, Regular Civil Appeal No.57 of 2015 came to be
filed by the Defendant. The Appellate Court re-appreciated the
evidence on record and held that the Plaintiff has proved that the
Defendant's possession was that of licensee, whereas the Defendant
has failed to prove that he is in possession as a tenant and dismissed
the Appeal.
6. Heard Mr.Kulkarni, learned counsel appearing for the Appellant
and Mr.Khatavkar, learned counsel appearing for the Respondent.
7. Mr.Kulkarni, learned counsel appearing for the Appellant would
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submit that the substantial question of law which arises is whether
the finding of the Court that the Defendant has failed to prove the
mode in which he came into possession of the suit property is
perverse in view of the clear admission in the plaint itself that the
defendant is in possession of the same as a licensee. He submits that
the Trial Court and the Appellate Court has not considered the
evidence in the proper perspective and therefore, the finding suffers
from perversity.
8. Per contra, Mr.Khatavkar, learned counsel appearing for the
Respondent would submit that the Defendant has failed to lead any
evidence and has failed to prove that he is in possession of the suit
plot as a tenant and in absence thereof, the Appellate Court has
rightly appreciated the evidence. This Court is informed that the
decree has already been executed and the possession has already
been handed over.
9. Considered the submissions and perused the record.
10. As there was a specific case of the Defendant that he is in
possession of the property in the capacity as tenant the burden was
upon the Defendant to prove the same. Admittedly, the Defendant
did not step into the witness box and did not lead any evidence and
therefore, presumption under Section 114 of the Indian Evidence Act,
1872 is required to be drawn that the case set up by him is incorrect.
As the Defendant claimed to be in possession, the burden was upon
him to show his right to be in possession of the property. The claim
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was that of tenancy which the Defendant has failed to prove. In the
case of Maria Margarida Sequeria Fernandes and Ors. vs. Erasmo
Jack de Sequeria (dead) through L.Rs. [AIR 2012 SC 1727], the Apex
Court in para 70, laid down that the person who claims possession has
to give following details, as under:
"70. It would be imperative that one who claims possession
must give all such details as enumerated hereunder. They are
only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property;
(b) title of the the property;
(c) who is in possession of the title documents;
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession - whether he
purchased the property or inherited or got the
same in gift or by any other method;
(g) in case he purchased the property, what is the
consideration; if he has taken it on rent, how much
is the rent, license free or lease amount;
(h) If taken on rent, license fee or lease - then insist on
rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or
otherwise living with him, in what capacity; as
family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might
have extinguished his entitlement to possession or
caused shift therein; and
(k) basis of his claim that not to deliver possession but
continue in possession."
11. In view of the settled position of law as laid down by the
Appellate Court, if the facts of the present case are considered, the
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Defendant has failed to prove any of the facts which are required to
be proved for protecting the possession as tenant. The Appellate
Court on the basis of appreciation of evidence has held that the
Defendant is not having any title to the suit plot and have also not
shown that he is the tenant of the plaintiff. The Appellate Court has
therefore negated the issue of the Defendant's possession in the suit
property as tenant. Considering the fact that the property was open
plot of land and therefore, the provisions of Transfer of Property Act,
1882 would apply, the Appellate Court has rightly upheld the findings
of the Trial Court decreeing the suit.
12. Upon consideration of the judgment of the Appellate Court
which is the final fact finding Court, there is no perversity which is
demonstrated from the record. As such, no substantial question of
law arises in the present appeal, Second Appeal stands dismissed.
13. In view of the dismissal of the Appeal, Civil/Interim Applications,
if any, taken out in this Appeal, does not survive and same is disposed
of.
[Sharmila U. Deshmukh, J.]
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Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 08/05/2024 19:09:28
