Sunday, 8 July 2018

When burden is on tenant to prove that structure was in existence since inception of tenancy?

Having heard the parties, it is needless to mention that the defence sought to be made out by the defendants was that the alleged construction was in existence right from the inception of tenancy. If that be so, onus was on the defendants to show that the alleged construction was in existence; when the father of the defendant Nos. 1 and 2 was inducted as tenant in the suit premises. In this behalf, if one turns to cross-examination of the plaintiff conducted on behalf of the defendants, it would be clear that the case sought to be made out in the cross-examination was to the effect that construction was done by the defendants with the permission of the landlord. If this line of cross-examination is taken into consideration and appreciated then in that event, it is abundantly clear that the said cross-examination is pregnant with the admission on the part of the defendants that they had resorted to additional construction with permission of the landlord. If that be so, the logical consequence would be that the defendants have resorted to construction after creation of the tenancy and that too without written consent or permission of the landlord. The case sought to be made out was contrary to record. In the above facts and circumstances, no fault can be found with the findings recorded by the Courts below which are based on proper, reasonable and legal appreciation of evidence on record. Even otherwise both the Courts below held that the petitioners/defendants failed to prove their defence and the plaintiff has proved her case. This Court not being a Court of Appeal cannot reappreciate the evidence afresh and reach to a different conclusion.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5434 of 1989

Decided On: 25.07.2001

 Najabat Nabibux Vs. Munnibai

Hon'ble Judges/Coram:
V.C. Daga, J.

Citation: 2002(1) RCR 103


1. This petition is directed against the judgment and order dated 9th November 1989 passed by the 7th Additional District Judge, Thane, in Civil Appeal No. 29 of 1987; whereby the judgment and decree for possession, dated 12.8.1986, passed by the 2nd Joint Civil Judge, JD, Bhiwandi, in Regular Civil Suit No. 240/79, was confirmed. The facts giving rise to the filing of this petition are as under:

The present petitioners were the original defendants, whereas the present respondent was the original plaintiff in the suit. The parties are referred to in this judgment in their original capacity for the sake of clarity.

2. The suit was filed against the defendant for recovery of possession, arrears of rent and education cess. The defendant also chose to prefer Misc. Civil Application No. 40/79, in which defendants disputed standard rent of the suit premises in the sum of Rs. 100/- p.m. and prayed for determination and fixation of standard rent. The application for fixing standard rent was rejected, and the standard rent of the suit premises was maintained in the sum of Rs. 100/- p.m. The revision application preferred against this order was dismissed by the 7th Additional District Judge, Thane, by order dated 9th November 1989. The said order has not been challenged, consequently it has become final and conclusive.

3. The Civil suit seeking possession of the suit premises was filed under the provisions of Bombay Rent Hotel and Lodging Houses Rates Control Act, 1947 (Bombay Rent Act for short). It was alleged in the suit that the defendants had carried out permanent construction in the suit premises without written permission of the landlord/plaintiff. After death of father of defendant Nos. 1 and 2, the present defendant Nos. 1 to 3 became statutory tenants and are occupying the suit premises. The allegations made in the plaint were that without permission of the plaintiff the defendants constructed Potmala, on the northern Gala of the suit premises. This newly constructed Potmala (Loft) was divided into two parts. The defendants converted it into two separate rooms and started using the same for their residence. it was also alleged that on the southern Potmala, defendants erected partition and converted it into two separate rooms and the defendant Nos. 1 and 2 both are living separately in these two roo

4. It was sought to be contended that the lofts constructed by the father of defendant Nos. 1 and 2, were constructed by inserting wooden logs in the walls and by erecting wooden pillars in the suit premises. Consequently, it was alleged that the lofts constructed were of the permanent nature and the same could not be easily removed without damaging the suit premises. After filing of the suit, the plaintiff amended her plaint. Para 5-A was added to the plaint. In the said para 5A, it was contended that on the northern side of the suit premises, one bath room has been constructed and tiles with one door, in the partition wall standing in between two Galas have been fixed. It was further pleaded that after construction of the said two lofts the defendants have also erected two stair-rcases; so as to provide approach to the Potmalas (Lofts). According to the plaint allegations all these constructions have been made without written consent and/or permission of the plaintiff/landlord.

5. On being summoned, the defendants appeared and filed their written statement and also filed additional written statement so as to reply the amended part of the plaint. In defence, it was pleaded inter alia; that the alleged constructions were in existence right from the inception of the tenancy. They denied having made any construction as alleged by the plaintiff.

6. On the basis of the aforesaid rival pleadings, issues consistent with the pleadings were framed by the trial Court. The parties were permitted to lead oral and documentary evidence.

7. The trial Court on the basis of evidence found that the lofts were constructed by the defendants in the half portion of the suit premises along with bath room and sink therein. It was further held that the defendants have been guilty of fixing two doors in the suit premises along with two stair cases to approach the lofts in question. The aforesaid findings are based on appreciation of evidence. Dissection of evidence done by the trial Court can be found in paras 14 to 16 of its judgment. The trial Court after having considered the rival contentions and pleadings brought on record was pleased to hold that there was blatant breach of Section 13(1)(a) of the Bombay Rent Act by the defendants and consequently, decreed the suit for possession,

8. Aggrieved by the aforesaid judgment and decree, the original defendants/petitioners preferred appeal before the Additional District Judge, Thane being Civil Appeal No. 28/87. The said appeal came to be dismissed by a reasoned order by the lower appellate Court.

9. The aforesaid judgment is the subject matter of challenge in this petition.

10. The learned Counsel for the petitioners contended that the various constructions alleged to have been done by the present petitioners/defendants were in existence right from the inception of the tenancy, when the father of defendant Nos. 1 and 2 was inducted as a tenant in the suit premises. It was further urged that the alleged constructions, alleged to have been done, by no stretch of imagination can be said to be permanent construction. In his submission, the said construction is removable, and, therefore, findings recorded by both the Courts below are contrary to the provisions of the Bombay Rent Act.

11. The learned Counsel for the respondent/plaintiff tried to support the impugned judgment and decree of the Courts below.

12. Having heard the parties, it is needless to mention that the defence sought to be made out by the defendants was that the alleged construction was in existence right from the inception of tenancy. If that be so, onus was on the defendants to show that the alleged construction was in existence; when the father of the defendant Nos. 1 and 2 was inducted as tenant in the suit premises. In this behalf, if one turns to cross-examination of the plaintiff conducted on behalf of the defendants, it would be clear that the case sought to be made out in the cross-examination was to the effect that construction was done by the defendants with the permission of the landlord. If this line of cross-examination is taken into consideration and appreciated then in that event, it is abundantly clear that the said cross-examination is pregnant with the admission on the part of the defendants that they had resorted to additional construction with permission of the landlord. If that be so, the logical consequence would be that the defendants have resorted to construction after creation of the tenancy and that too without written consent or permission of the landlord. The case sought to be made out was contrary to record. In the above facts and circumstances, no fault can be found with the findings recorded by the Courts below which are based on proper, reasonable and legal appreciation of evidence on record. Even otherwise both the Courts below held that the petitioners/defendants failed to prove their defence and the plaintiff has proved her case. This Court not being a Court of Appeal cannot reappreciate the evidence afresh and reach to a different conclusion.

13. So far as the nature of construction, whether it is of permanent or otherwise is concerned, the same has rightly been considered in the light of the nature of construction of the existing house. If the construction made by the defendants is considered in the light of the nature of construction of the existing house, the construction resorted to by the defendants has to be treated as of permanent nature and the same cannot be removed without damaging the existing structure of the house.

14. A. All the submissions made on behalf of the defendants relate to the appreciation of the evidence. As already said, it cannot be gone in writ jurisdiction of this Court under Article 227 of the Constitution of India. No fault can be found with the appreciation of evidence. Both the Courts below have recorded concurrent findings of fact. Hence, no interference is called for with the impugned orders of the Courts below.

15. In the result, writ petition is dismissed. Rule is discharged with no order as to costs.


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