Sunday, 28 April 2019

When burden of proof is on defendant to prove that he is tenant?

 The entire case of the appellant is based on the proposition that as he was occupying the suit premises since 1979, it was with the permission of the landlord and as he was allowed to stay on the suit premises, so it is to be inferred that rent was paid by him and accepted by the landlord. It is contended that the appellant has proved that he is a tenant then ground of encroachment as pleaded by the plaintiff goes away and the plaintiff has no right to claim possession on the ground of encroachment and so no relief either of perpetual injunction or mandatory injunction or possession can be granted in favour of the appellant. Thus, foundation of the case of the appellant is that he is a tenant of the respondent. This fundamental fact is required to be proved. Question is whether this fact can be proved in the absence of any documentary or sufficient oral evidence?

13. Admittedly, no documentary evidence either of rent receipt or any agreement is produced by the appellant in both the suits. The appellant tried to prove this fact with the help of these three witnesses. However, he did not mention anything about obtaining the suit property with the help of any middle-man. Had this suit property been obtained with the help of Mr. Bhandilkar, then this fact ought to have been mentioned by the appellant in the written statement. Oral evidence should pass a test of credibility. It is expected that party should take a consistent stand to build up his case from the initial stage of the suit. Admittedly, the respondent had let out few shops or premises near the suit premises, to other persons. However, that evidence will not establish the fact that therefore the suit premises was also let out to the appellant by the respondent-landlord. The fact of possession is not challenged as there is a prayer of the possession and relief to that extent is prayed by the plaintiff. Thus, the fact that the appellant is in possession of the suit property since 1979 is itself not helpful to the appellant to establish tenancy. Long possession or even permissive long possession cannot itself establish a person is a tenant of the landlord. It can be only said that he was allowed to stay or remain on the suit property for some period and for that period, his possession was tolerated and therefore he cannot be labelled as an encroacher for that period. As soon as a permission is withdrawn, the status of an occupant is converted into an encroacher. Thus, in the absence of any tenancy, no legal right is created in favour of the appellant against the respondent.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 504 of 1991, 

Decided On: 05.10.2012

Pandurang Dharma Gaikwad  Vs. Mahamudmuya Ahmadsaheb Patil

Hon'ble Judges/Coram:
Mrs. Mridula Bhatkar, J.

Citation: 2013(2) MHLJ 949


1. Second Appeal No. 504 of 1991 is arising out of proceeding in Regular Civil Suit no. 96 of 1984. Respondent-Mohamuddin is the plaintiff in civil suit no. 96/1984. The suit was filed for mandatory injunction i.e. for removal of encroachment and the possession. The suit was dismissed with costs by judgment dated 29th July 1987, against which the respondent/original plaintiff preferred first appeal no. 119/1987 which was allowed on 21st August 1991 and the judgment and decree passed by the lower court was set aside. The said judgment and order of the appellate court is challenged by the appellant-original defendant in second appeal no. 504/1991. Second Appeal No. 620/2010 is filed against the judgment and order of the concurrent finding of the courts below. Regular Civil Suit No. 30/1995 was filed for perpetual injunction against the appellant from interfering the possession of the respondent over the suit land i.e. 7.4 M X 3.3. M., which was decreed on 16.2.1998 by the trial court against which civil appeal was preferred by the present appellant-original defendant in suit of 61/1998 and the said appeal was dismissed with costs on 9th July 2012.

2. In appeal no. 504/1991, though appearance of one advocate Mr. Pawar is shown, he did not appear before this Court when the matter was taken up for hearing. The matter was shown on the board for final hearing since last week and thus, sufficient notice was given to the respondent. In second appeal no. 620/2010, though the writ was served on the respondent, nobody appeared for the respondent. Both the appeals are listed on the board of final hearing, since last week and thus sufficient notice was given to the respondent. Hence appeal proceeded exparte.

3. In both the second appeals, the submissions were made by the Learned Counsel for the appellant that these two appeals are between the same parties and involve the same substantial questions of law, therefore, as the appeal no. 504 of 1991 is already admitted and substantial questions of law are formulated in second appeal no. 504 of 1991, so they are already clubbed, but second appeal no. 620/2010 is to be admitted on the same questions of law.

4. These submissions that appeals are listed on the board of final hearing and agreed that second appeal no. 620 of 2010 is to be decided at the stage of admission were accepted by the Court. Hence, second appeal no. 620 of 2010 is admitted and substantial questions of law in second appeal no. 504 of 1991 are treated same substantial questions of law as are formulated in second appeal no. 620 of 1991. By consent, both second appeals are heard together and decided finally by this common judgment.

5. Second appeal no. 504/1991 is admitted on 18.11.1991. The substantial questions of law are considered as ground nos. 5 to 8 :

(1) That the case of the Defendant that he had constructed the structure on the suit property after taking oral consent on rental basis of Rs. 30/- per month ought to have been accepted and relied upon.

(2) That the substantial question of Law in this case is that the Plaintiff has filed the suit alleging that somewhere in the month of May 1984, the Defendant has encroached upon the suit property, where as this case of the Plaintiff has been falsified by the version of the Plaintiff's own witness and also from the documentary evidence produced by the Defendant such as receipts showing that the structure was in existence prior to 1984.

(3) That document Exhibit 69 to 72 and other receipts produced by the Defendant in the Appellate Court would go to show that the Defendant was in possession much prior to the date on which Defendant alleged to have been encroached upon the suit property.

(4) That the substantial question of Law is that the Lower Appellate Court has wrongly shifted the burden on the Defendant to prove that he was tenant in the suit property, whereas the Plaintiff has filed the suit against the Defendant on the basis of encroachment by the Defendant in the year 1984.

6. Mr. Sawant, Learned Counsel for the appellant submitted that the appellant is running a tailoring shop and was in possession of the suit property since 1980. It is denied that he was in possession of the suit premises since 6th May 1984 when the cause of action has taken place. He submitted that the title of the plaintiff is not disputed by the respondent. However, encroachment is not proved by the plaintiff. The trial court has dismissed the suit but the appellate court, while allowing the appeal of the respondent, did not consider the evidence of the appellant. The appellate court wrongly placed burden of proof on the appellant of the payment of rent by the appellant to the respondent. He pointed out that the plaintiff's witnesses i.e. P.W. 3 Mangrulkar, Exhibit 55 and Mr. Shaikh, Exhibit 65 have admitted that the defendant appellant was on the suit premises prior to 1984 i.e. since 1980. The defendant was doing his business of tailoring in a temporary tin shed. The shed was erected and constructed by brick masonry wall. The case of the appellant that he was occupying the suit premises with the permission of the respondent since 1980 on payment of Rs. 30/- per month. The respondent did not issue any rent receipt towards that payment. However, allowed him to continue his business of tailoring. It is further argued that evidence of the appellant ought to have been believed by the first appeal court on the point of occupation. The Learned Counsel submitted that when the appellant i.e. original defendant constructed the structure in the place of shed, the respondent-plaintiff demanded more rent. He made demand of Rs. 50,000/- as deposit and also made steep hike and demanded monthly rent of Rs. 100/- from the appellant. The Learned Counsel submitted that it was not possible for the appellant to nod such a steep hike of the rent and also to pay deposit of Rs. 15,000/-. Therefore, the respondent made out a false case of encroachment against the appellant and filed a suit against him.

7. The Learned Counsel argued that the appellate court has mixed up the issue of tenancy and encroachment. He argued that the appellant used to pay the tax viz. municipal taxes, MSEB bills, in respect of the suit property and thus he was not at all an encroacher, therefore the appeal ought to have been allowed by the first appeal court. He pointed out that the plaintiff/respondent filed a suit No. 30/1995 for perpetual injunction that the original defendant should not disturb his possession in respect of land admeasuring 7.4 X 3.3 meters (32 x 11 feet). The Learned Counsel explained that the suit property in second appeal no. 620/2010 is a rear side property of the suit property in second appeal no. 504/1991. The suit property in second appeal no. 620/2010 is a brick masonry structure of W.C. constructed by the appellant. He submitted that on the basis of the contentions raised in the written statement filed in regular civil suit no. 30/1995, the appellant claimed his hostile title and adverse possession over the suit property. However, the first appellate court determined this point of claim by adverse possession at point no. 4 and gave negative finding against the appellant. The Learned Counsel argued that the appellant, at this stage, did not claim title by adverse possession and therefore, this Court need not give any finding to that effect. He reiterated the claim of the plaintiff in the suit property as a tenant which is accepted by the appellate court in its findings in appeal no. 61/1998. He relied on paragraph 13 of the observations of the Judge of the first appellate court wherein it is mentioned that the defendant's admission in his examination-in-chief itself disclosed that his status as a tenant and the admission in respect of the relationship between the plaintiff and the defendant is as a landlord and a tenant. He argued that the admission of a party is a substantive evidence of a fact. However, trial court has failed to give due weightage to such admission. While summarizing his arguments, the Learned Counsel submitted that the courts below ought to have appreciated that the appellant was never a trespasser. He was allowed to use that land and as the relationship between the plaintiff and the appellant was of landlord and tenant. No person would be tolerated on the land without accepting any consideration either by license fees or rent. He prayed that the decree of the appellate court be set aside in both the appeals.

8. All the questions of law are based on the erroneous appreciation of evidence adduced by the parties and therefore, to answer these questions one needs to go into the evidence of the parties Question no. 4 is in respect of a 'burden of proof' which was on the defendant that he was a tenant in the suit property. I will deal with this substantial question of law first. Though the suit is filed for the encroachment, defendant has taken a defence that he was a tenant in the suit premises and therefore, he cannot be treated as an encroacher. True, in the case of encroacher, the initial burden is on the plaintiff to show that he is the owner of the suit property and there is an encroachment by the defendant. If defendant contends that he is occupying the disputed premises as he has some right in it, then the onus shifts on the defendant to show in what capacity he is occupying the suit premises.

9. I have gone through the evidence of the witnesses of the appellant i.e. Yashwant Bhandilkar (exhibit 72), who has acted as a middle-man when the appellant occupied the suit property in June 1979 and evidence of Vishnu Mangarulkar (exhibit 55), and also evidence of the plaintiff-Pandurang Gaikwad, exhibit 73. Pandurang Gaikwad was examined on the point of possession of the suit property who supported the claim of the defendant that the defendant was in the possession of the suit property from the year 1979. However, this witness was working with him. The appellant has occupied the suit premises since 1979 and doing the business of tailoring in the suit premises. Pandurang Rasal was working with him from the year 1982 as an assistant tailor and therefore, his evidence can be accepted about the possession of the suit property by the appellant from the year when he joined the defendant.

10. Yashwant Bhandilkar has acted as a middle-man and the suit property, as per his evidence, was let out to the appellant/defendant from June 1979 on rental basis. However, this fact is not mentioned in the written statement of the defendant and therefore evidence of Yashwant Bhandilkar is a very weak evidence and not a conclusive one.

11. Mr. Sawant, Learned Counsel for the appellant submitted that the Court should take into account a long occupation and use of the suit premises by the appellant. The appellant as allowed to carry out his business of tailoring on the suit premises without questioning by the respondent-landlord because he was accepting the rent for the same. It may be that the landlord when let out the premises to a person may not issue rent receipt to a tenant but he is allowed to continue the business or stay in the suit premises. The Learned Counsel endeavoured to convince the Court that the appellant is a permissive occupier on the land and he was never an encroacher.

12. The entire case of the appellant is based on the proposition that as he was occupying the suit premises since 1979, it was with the permission of the landlord and as he was allowed to stay on the suit premises, so it is to be inferred that rent was paid by him and accepted by the landlord. It is contended that the appellant has proved that he is a tenant then ground of encroachment as pleaded by the plaintiff goes away and the plaintiff has no right to claim possession on the ground of encroachment and so no relief either of perpetual injunction or mandatory injunction or possession can be granted in favour of the appellant. Thus, foundation of the case of the appellant is that he is a tenant of the respondent. This fundamental fact is required to be proved. Question is whether this fact can be proved in the absence of any documentary or sufficient oral evidence?

13. Admittedly, no documentary evidence either of rent receipt or any agreement is produced by the appellant in both the suits. The appellant tried to prove this fact with the help of these three witnesses. However, he did not mention anything about obtaining the suit property with the help of any middle-man. Had this suit property been obtained with the help of Mr. Bhandilkar, then this fact ought to have been mentioned by the appellant in the written statement. Oral evidence should pass a test of credibility. It is expected that party should take a consistent stand to build up his case from the initial stage of the suit. Admittedly, the respondent had let out few shops or premises near the suit premises, to other persons. However, that evidence will not establish the fact that therefore the suit premises was also let out to the appellant by the respondent-landlord. The fact of possession is not challenged as there is a prayer of the possession and relief to that extent is prayed by the plaintiff. Thus, the fact that the appellant is in possession of the suit property since 1979 is itself not helpful to the appellant to establish tenancy. Long possession or even permissive long possession cannot itself establish a person is a tenant of the landlord. It can be only said that he was allowed to stay or remain on the suit property for some period and for that period, his possession was tolerated and therefore he cannot be labelled as an encroacher for that period. As soon as a permission is withdrawn, the status of an occupant is converted into an encroacher. Thus, in the absence of any tenancy, no legal right is created in favour of the appellant against the respondent.

14. The trial court and appellate court have not committed any error on putting the burden on the defendant to prove his status as a tenant and he was not an encroacher.

15. The plaintiff/respondent examined himself. He has deposed that the defendant has constructed room east to west 11 feet and south north 32 feet. Thus, the structure is of 11 x 32 feet. He has specifically mentioned that the defendant encroached the said area from 6.5.1984. He has denied that the defendant was his tenant. He admitted that exhibit 41 B/1, 2 to 5 are the receipts in the name of defendant. These, receipts are the receipts of payment of the monthly tax in respect of the suit premises. He also examined Balaju Natu Mhatre and one Vishnu Vyankappa Morul on the point of encroachment. Vishnu stated that he is a tenant of the plaintiff and the plaintiff issued rent receipts to him. He had deposed that the defendant had one cabin of 4 x 5 feet and the cabin of the defendant was adjacent to his shop. He has stated that the defendant demolished the said cabin and he constructed tenament of 10 x 30 feet in May or June 1984. In the course of examination, he admitted that his shop and other 4 to 5 shops are on one land. Defendant's shop was one of them and they all are tenants of the plaintiff. He did not produce any rent receipt given to him by the plaintiff. He has stated in the cross examination that he and all the other tenants of the plaintiff, who are adjacent to his shop, are paying municipal taxes to Khopoli Municipal Council. He deposed that the plaintiff/respondent gave oral consent for his construction and other tenants have constructed tenament on their own expense. It appears from the evidence that the defendant allowed that shop of 4 x 5 feet on the said land. Evidence of this witness if accepted as it is, it is established that the plaintiff issued rent receipts to his tenants. Assuming that the plaintiff never issued rent receipts to his tenants who were having shops in the line, the fact of tenancy of the appellant is not proved. From the evidence of Mr. Mangarulkar, placement of the shop of the defendant can be fixed. It was adjacent to the shop of the witness. It appears that in the year 1984 all the shop occupiers who are tenants of the plaintiff demolished their earlier shops and constructed permanent structure, but that is with the permission of the plaintiff. That evidence corroborates the case of the defendant to certain extent that he carried out the permanent construction and to give consent, the plaintiff demanded money and as he refused to give money, he filed a suit against him on the ground of encroachment. At the most, it can be said that the defendant was having a small structure of 4 x 5 feet as a shop where he was running his business of tailoring with one machine which was tolerated by the plaintiff, however, the plaintiff did not give consent to the further structure of 11 x 32 feet. In the absence of the consent of the plaintiff, the defendant has constructed permanent structure and thus, his encroachment on the land his evident.

16. Submissions of the Learned Counsel that the defendant was a permissive occupier or tenant and so he cannot be an encroacher and the possession is demanded on the ground of encroachment and therefore if defendant is treated as a permissible user, then on the ground of encroachment, the defendant cannot be dispossessed, are devoid of merit and unsustainable in law.

17. The trial court did not commit any error in assessing the evidence, no omission is found therefore, the finding of the substantial questions of law nos. 1, 2, 3 and 4 is against the appellant.

18. Both the appeals are dismissed. In view of the dismissal of the second appeals, civil application, if any stands disposed of accordingly.


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