Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3897 OF 2001
Dharamgiri Maharaj Since deceased by his legal heir & representative:
Jagannath Giri residing at the landing of staircase of
Babulnath Temple, Babulnath Road, Mumbai- 400007. ....Petitioner
2. Chandrakant Manilal Bhagat
3. Hemraj Chatrabhuj Ashar
4. Chaitanya D. Mehta
5. Niranjan L. Hiranandani
6. Jitendra M. Thakker
7. Pradip R. Shroff
8. Hemang P. Thakker
Being the present trustees of the
Babulnath Temple Trust, Babulnath Road, Mumbai-400007. …Respondents
***
Mr. Satyavan N. Vaishnav a/w. Ms. Nupur J. Mukherjee, Mr. Armaan Grewal i/b M/s. N. N. Vaishnawa & Co. for the Petitioner.
Mr. Pradeep J. Thorat a/w. Ms. Aditi Naikare for the Respondents.
***
JUDGMENT
1. The Petitioner Dharamgiri is a legal representative of original Defendant - Baba Bramhanandji in L.E. Suit No. 256 of 1977 filed by the then trustees of Respondent- Trust Babulnath Temple Trust, Babulnath Road, akn 1/14 Mumbai-400007, which is a famous Shiva temple in Mumbai. The parties are referred to in their original capacity for better understanding. Respondents are Plaintiffs.
2. The case of the Plaintiff-Trust in short is that the Defendant is an ascetic and follower of one Baba Ramgiriji. The Plaintiff-Trust had permitted late Baba Ramgiriji to use un-demarcated portion on landing of the main staircase of the Babulnath Temple. Upon death of said Baba Ramgiriji in or about 1968, the Trust had permitted the Defendant to use the said portion of the landing. That by Advocate’s letter dated 06/02/1976, the Plaintiff-Trust has withdrawn and revoked the permission granted to the Defendant to use the portion of the landing. The Defendant by Advocate’s letter dated 15/03/1976 took a stand that he was a tenant. The Plaintiff-Trust thereafter, by way of precaution issued second Advocate’s letter dated 08/02/1977 and again withdrew the permission granted to the Defendant to use the said portion of the staircase-landing, which was again replied by the Defendant through his Advocate’s letter dated 16/02/1977 wherein similar stand was adopted. That the portion of the landing of the main staircase, which was permitted to be used, is not a premises or room which is capable of being let under the provisions of the Bombay Rents, Hotel And Lodging House Rates Control Act, 1947 (‘Bombay Rent Act’ for short). That the Defendant failed to vacate the said portion of the landing and therefore the suit was filed under section 41 of the Presidency Small Causes Court Act, 1888 seeking direction to the Defendant to vacate and remove himself from the occupation of the said portion of landing on the main staircase of the temple.
3. The original Defendant-Baba Brahmanandji filed written statement in akn 2/14 December 1977 contending interalia that deceased-Baba Ramgiriji was tenant of the Plaintiff-Trust in respect of demarcated portion at the main gate and in the rent bills issued from time to time, the said premises have been described as ‘Darwajawali room’ for which rent of Rs.2/- was being charged. That after the death of Baba Ramgiriji, the Plaintiff-Trust has been receiving rent from the defendant. However, the Plaintiff-Trust continued to issue rent receipt in the name of Baba Ramgiriji. That deceased Baba Ramgiriji expired in the suit premises and the Defendant being his disciple (Chela), performed all the rituals. That there is electric sub-meter in the suit premises for which the Plaintiff-Trust has been charging deceased-Baba Ramgiriji and thereafter the Defendant for electricity charges. He denied that un-demarcated portion on the landing of main staircase was permitted to be used. That deceased-Baba Ramgiriji has been tenant since prior to 1930 and the suit premises has remained in exclusive possession, use and occupation of the said deceased-Baba Ramgiriji during his lifetime and thereafter in exclusive use and possession of the Defendant. Exchange of notices are admitted. Defendant denied that the suit premises are not capable of being let under the provisions of the Bombay Rent Act or Transfer of Properties Act. He claimed protection under the provisions of Bombay Rent Act and contended that he is ready and willing to observe terms of tenancy.
4. The present Petitioner-Dharamgiri Maharaj filed a written statement in April 1983, contending that he is lawful tenant of the suit premises. He adopted the case made out in written statement of original defendant.
5. The Plaintiff-Trust examined Shri Jayantilal Madanlal Bramhabhatt as P.W.-1 who was manager of the Plaintiff-Trust at the relevant time. Defendant akn 3/14 examined one Shri Mahant Sohangiri as D.W.-1 who claims to be the disciple (Chela) of original Defendant-Baba Brahmanandji and guru of present Petitioner-Dharamgiri. One Mr. Digambar Raghunath Dalvi is examined as D.W.-2, who claims to be a devotee of the temple.
6. The learned Judge of Small Causes Court at Mumbai, by judgment and Decree dated 18/10/1996 decreed the suit and directed the Petitioner to handover the suit premises to the Plaintiff-Trust. The Petitioner filed Appeal No. 68/1997 and challenged the decree of eviction. The Appellate Bench of the Small Causes Court at Mumbai, by the impugned judgment and decree dated 22/06/2001 dismissed the appeal, thereby confirming the decree of eviction.
7. It is in these circumstances that the Petitioner filed present Writ Petition in this Court challenging concurrent findings of facts, under Article 227 of the Constitution of India. The Petition was admitted on 17/09/2001 and stay was granted to the decree of eviction. Petitioners – Dharamgiri Maharaj expired during pendency of Petition and his legal representative – Jagannathgiri Maharaj is impleaded.
SUBMISSIONS
8. Learned Counsel Mr. Vaishnav appearing for the Petitioner submitted that Petitioner is a tenant and the suit ought to have been filed treating the Petitioner as regular tenant and should not have been filed as suit against gratuitous licensee. He submitted that series of rent receipts are produced and therefore the Plaintiff trust is estopped from contending anything contrary to the rent receipts. That the Plaintiff-Trust has been charging electricity charges to the Petitioner after providing sub-meter. That Plaintiffs’ akn 4/14 witness has admitted that the Trust issued 24 rent receipts for 1927 to 1967 and therefore Petitioner cannot be treated as gratuitous licensee. He submitted that the suit premise is part of building capable of being separately let and specific demarcated portion alongwith electric sub-meter has been let. He submitted that merely because during rush hours some devotee cross the line of the demarcated portion, it cannot be said that use and occupation is not exclusive. Therefore, the suit premises are premises within the definition of Section 5(8) of the Bombay Rent Act. The word ‘appurtenant to’ in said section has been pressed into service to contend that suit premises are within the definition. Reliance is also placed on provisions of section 13(5)(ii) of the Bombay Rent Act to contend that premises includes ‘landing’. That the Petitioner is a tenant under section 5(11)(c) of the Bombay Rent Act, being member of the tenant’s family residing at the time of tenant’s death. He submitted that for ascetic people, a Chela or disciple resides with guru as a member of family and since there has been guru-Chela relationship between the original tenant and subsequent Chelas, the tenancy continues. He submitted that the plaint is affirmed by assistant manager and evidence is led by another manger, without power of attorney or resolution. Therefore suit is filed without any authority. He relied upon following case law in support of his case: (a) Bharat Singh and Others vs Mst. Bhagirathi [AIR (1966) SC 405] (b) Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others [(1960) SC 100]
(c) Sh. Lin Kuei Tsan vs. Sh. Ashok Kumar Goel [(2015) SCC
OnLine HP 1682] akn 5/14
(d) Sohanlal Naraindas vs. Laxmidas Raghunath Gadit
[(1963) SCC OnLine Bom 85] (e) Lakhi Ram Ram Das vs. Vidyat Cable & Rubber Industry, Bombay [(1970) 40 AWR 136 (f) Shri Rikhu Dev, Chela Bawa Harjug Dass vs Som Dass (deceased) through his Chela Shiam Dass [(1976) 1 SCC 103]
9. On the other hand, learned counsel Mr. Thorat for the Respondent licensor submitted as under. That the suit premises is a portion of second mid-landing of the staircase and it is an un-demarcated portion which is admittedly not enclosed with walls and the same is accessible to all devotees to visit the temple while climbing stairs. That any person visiting the temple has to pass through the premises. Therefore, the Petitioner or original Defendant never had exclusive possession. That admittedly suit premises is not a room. That the Trial Court has framed issue whether suit premises is within the meaning of Bombay Rent Act. That the suit premises are not covered under Section 5(8) of the Bombay Rent Act. That the argument about ‘appurtenant to’ and ‘landing’ based on Sections 5(8) and 13(5)(ii) of the Bombay Rent Act is flawed for the reason that said provision contemplates that some premises is let out in the first place and such premises may include various parts of the building. That in the present case, suit premises is merely a space in landing of a stair-case, not covered by the walls, de hors any main premises being let. Therefore, it cannot be termed as ‘premises capable of being let out’ independently. Judgment of Rukhaminibai Ramvilas Lehoti Vs. M/s. Muralldhar Govindram & Anr. [(1985) 1 Bom CR 418] is relied upon in support of this contention. akn 6/14
10. Mr. Thorat further submitted that original Defendant has not stepped into witness box and therefore necessary adverse inference must be drawn. Witness examined by the Defendant does not have personal knowledge of the facts and therefore his evidence is hearsay. The judgment Vidhyadhar Vs. Manikrao & Anr. [(1993) 3 SCC 573] is relied upon in support of contention that if a party abstains from entering into witness box, an adverse inference arises against such party.
11. It is then submitted by Mr. Thorat that reliance placed on receipts issued by the Respondent shows the premises therein ‘Darwajawali Room’. However, the rent receipts are not produced and proved by the witness for Defendant. He submitted that the rent receipts are marked as exhibits because they were shown to the Plaintiff’s witness in his cross-examination and they cannot be held as proved because Defendant was required to prove them independently. It is submitted that the receipts relied by Defendant are printed receipts which was being used for a chawl adjacent to the temple. It is submitted that mere use of word ‘rent’ is not conclusive proof of tenancy. That no independent evidence is produced to prove landlord-tenant relationship. That though the Defendant claimed tenancy, no suit is filed seeking declaration of the tenancy and same is raised merely as defence. He relied upon the judgment of Dr. H. S. Rikhy & Ors. Vs. The New Delhi Municipal Committee [AIR 1962 SC 554] in support of the contention about mere use of word ‘rent’. Judgment of Laxmikant Sinal Lotlekar & Anr. Vs. Raghuvir Sinai Lotlekar & Anr. [1984 Mah LJ 938] is relied upon in support of contention that document introduced in the cross-examination are not meant to prove original case.
12. Mr. Thorat further submitted that the alternative argument of akn 7/14 protection under Section 15A of the Bombay Rent Act is also not applicable, firstly because the same does not apply if the premises is less than a room and secondly because it is not pleaded in written statement. Judgments of Mahibubsaheb Abdul Rahiman Haddiwala Vs. Siddheshwar Devasthan [1993 (2) Mh LJ 1730] and Tukaram Sawant Vs. Mangalalaxmi Chinubhai Shah & Ors. [1989 MhLJ 197] are relied upon.
REASONS AND CONCLUSION
13. I have considered the rival submissions and perused the records.
14. At the outset, it is material to note that admittedly the suit filed by the Respondent has been decreed and Appeal filed by the Petitioner has been dismissed, thereby confirming the decree of eviction. Therefore, the Petitioner is before this Court challenging concurrent findings of fact and law under Article 227 of the Constitution of India which is necessarily a supervisory jurisdiction provided to make sure that the order passed by the Courts below is within the bounds of law. This Court cannot re-appreciate the evidence in exercise of Article 227 of the Constitution of India. Therefore, the judgments passed by the Trial Court and Appeal Court will have to be seen accordingly.
15. So far as the argument that Defendant himself has not entered into witness box and therefore adverse inference must be drawn against the Defendant and the counter argument that the Plaintiff’s witness also did not have necessary Power of Attorney or resolution in his favour, are concerned, I am inclined to reject both. The evidence as led by both the sides has been considered by the Courts below and a conclusion has been drawn. Its legality is being tested. Therefore, I will proceed to consider the evidence as akn 8/14 it is.
16. Admittedly, the Defendant has examined two witnesses. DW-1 claims that original Defendant Bramhanandji was his guru and Ramgiriji was his guru’s guru. He further claims that present Petitioner is his chela. Therefore, it is clear that the original Defendant has not stepped into witness box. His cross-examination clearly indicates that every day and particularly on Mahashivratri there is rush of devotees in the temple and in case of rush, if any devotee crosses the cement line (allegedly demarcating the suit premises) then the devotees are not prevented. He has admitted that he does not know anything about terms and conditions on the basis of which Ramgiriji was given suit premises by the Respondent trust. He also admitted that he does not know in which year the suit premises were given to Ramgiriji. He has also admitted that there is no water tap, toilet and bathroom in the suit premises. He has further admitted that suit premises is open on two sides and there are walls only on two sides of the mid-landing. DW-2 has admitted that ‘baithak’ of Ramgiriji is ‘an open area’ and the suit premises in the mid-landing is ‘a passage’ to go to Babulnath temple. He has admitted that he has not received any witness summons and has been called to depose by first witness Sohangiri.
17. With the aforesaid admissions, it is clear that suit premises is not a room and it is a space which is open from two sides, having only two walls and part of mid-landing in the staircase and and which is also available as a passage to the temple. Therefore, by no stretch of imagination, suit premises can be called ‘a room’. Therefore being less than a room, no protection under Section 15A of the Bombay Rent Act can be given to the Petitioner. akn 9/14
18. The definition of premises under Section 5(8) r/w. Section 13(5)(ii) of the Bombay Rent Act, clearly indicates that for ‘a landing’ to become premises, it has to be included by way of inclusion to main suit premises let out. Section 13(5)(ii) does not make any one or more of the structures stated therein independently ‘premises’. Considering admitted position that suit premises is only part of a mid-landing, the same in itself would not fall in the definition of the premises and therefore, the word ‘appurtenant’ would not help the Petitioner. For these reasons, the suit premises are not ‘premises capable of being let’ and therefore no protection under Bombay Rent Act can be claimed for the same.
19. In view what is observed above, the judgments relied by the learned counsel for the Petitioner in the case of Sh. Lin Kuei Tsan and Sohanlal Naraindas (Supra) and Lakhi Ram Ram Das (supra) will not advance the case of the Petitioner. In Sh. Lin Kuei Tsan (supra) the tenanted premises was one shop on the level of Mall Road alongwith entire basement and a toilet under the stairs. In such set of facts, the judgment is delivered by the learned Single Judge of the Himachal Pradesh High Court. In the present case, there is no separate premises let out to which suit premises can be considered as appurtenant and therefore facts of the present case are totally distinguishable.
20. In Sohanlal Naraindas (supra), the tenanted premises was a loft or room on the first floor. In the present case, the premises are not even a room. Therefore, the facts of the present case are totally different. Therefore, the said judgment will not also advance the case of the Petitioner.
21. So far as the judgment of Lakhi Ram Ram Das (supra) is concerned, it akn 10/14 is relied in support of argument that it is the duty of the Court to go beyond the facade and find out the real nature of the contract because it is common knowledge that several landlords attempt to bypass the provisions of law. In the said case, it was a lease in respect of land and a shed was constructed thereon. In the present case, intention of parties is not a question before the Court. The suit premises itself are found to be of such a nature that it is incapable of being let out and it does not fall within the definition of premises under Bombay Rent Act and therefore, protection thereunder cannot be claimed. Hence, on distinguishable facts, the said judgment of Lakhi Ram Ram Das (supra) will also not advance the case of the Petitioner.
22. So far as the judgment of Shri Rikhu Dev (supra) relied upon by the Petitioner is concerned, present suit premises are found to be not capable of being let under the definition of ‘premises’. Therefore the question of application of Section 5(11)(c) of the Rent Act for considering the original Defendant or his disciple (chela) as tenant does not arise. Therefore, the said judgment also will not advance the case of the Petitioner.
23. So far as the argument that 24 rent receipts for 40 years from 1927 to 1967 is concerned, this argument must be considered in the light of law laid down by the Laxmikant S. Lotlekar (supra). In the said judgment, this Court was considering a case where certain documents were introduced in evidence by way of cross-examination. In the said judgment, this Court has taken a view, after considering the provisions of Order XIII of the Civil Procedure Code, 1908 (‘CPC’, for short) that if certain documents are introduced in evidence by way of cross-examination then they are not meant to prove the original case of either party in plaint or written statement. It is also held that Defendant is not entitled to introduce documents to prove his akn 11/14 original case in the course of cross-examination. In the present case, admittedly, the alleged rent receipts are shown to the witness of Plaintiff during cross-examination and therefore those rent receipts at Exhibit-2 & 3 (colly.) cannot be held as sufficient to prove the case of tenancy as made out in the written statement. In any case, since it is held that the suit premises are not ‘premises’ capable of being let under the provisions of Bombay Rent Act, no protection thereunder can be claimed. For the same reason the judgments relied upon by the learned counsel for the Petitioner in the case of Bharat Singh (supra) and Narayan Bhagwantrao (supra), (relied for the purpose of effect of admission by Plaintiff) will not advance the case of the Petitioner.
24. It is admitted position that Baba Ramgiriji expired sometime in 1967 and original Defendant Brahmanandji started using the suit premises from 1968 onwards. Therefore, apparently the rent receipts produced on record do not pertain to period from which original Defendant started occupation.
25. Since it is concurrently held as a finding of fact that the suit premises are not capable of being let and does not fall under definition of the premises, the argument about proving of rent receipts need not be considered any further and it’s consideration by the Courts below cannot be said to be perverse.
26. Viewed in the light of what is observed above, if the judgment of the Appeal Court is perused, it can be seen that the effect of Defendant not stepping into witness box has been considered. After considering the evidence on record, the Appeal Court has held that premises occupied by the Petitioner cannot be said to be premises as defined under Section 5(8) of akn 12/14 Bombay Rent Act. It is held that the width and length of the premises is not given. After considering evidence, it is held that it is not possible to say that the Defendant was in exclusive possession of any area. The Appeal Court has also considered that since it is not proved by the Defendant that he was tenant, there is no question of devolution of the tenancy under Section 5(11)(c) of the Bombay Rent Act. The service of termination notice is admitted. The Appeal Court has considered the pleadings in written statement and held that the case about other trustees necessary to be joined, is not pleaded nor there is any cross-examination on this point.
27. The Appeal Court has also held that photographs produced on record show that there are no four walls, doors and windows to the suit premises. That it is not disputed that the suit premises is part of midlanding on stair case. The Trial Court has considered Section 5(8) of the Rent Act. The Appeal Court has considered that the object of constructed staircase was for the devotees to approach the Babulnath Temple and it cannot be held that staircase was constructed to let out separately. The Appeal Court has also held that the portion on the midlanding in a stair case is not premises capable of being let out and the protection of Bombay Rent Act cannot be claimed.
28. The Trial Court in paragraph No.7 of the judgment, on appreciation of evidence has held that in the old photographs produced on record, the present zig-zag cement line, alleged to be demarcation of the suit premises, is not found. That the original Defendant and his Guru or Chela being ascetic, are not ordinary persons possessing household articles. That they also do not reside in place like ordinary persons possessing house and therefore, the devolution of their interest in the tenancy cannot be accepted akn 13/14 under Section 5(11)(c) of the Bombay Rent Act. That the suit premises are not capable of being let under the provisions of Rent Act and therefore, Baba Ramgiriji and thereafter original Defendant and his further disciple cannot be treated as tenant. That they were mere licensees who were permitted to use the suit premises. The Trial Court has held that this permission/licence was personal and therefore, the original Defendant Brahmanandji cannot be said to inherit such right on the death of Baba Ramgiriji. The Trial Court has also held that service of notice of termination dated 08.02.1977 is admitted and therefore, the permission granted to Brahmanandji was revoked. Therefore, he cannot continue in possession.
29. In the aforesaid facts and circumstances, there is no perversity or error apparent on the face of record requiring inference by this Court in the concurrent finding of the fact. Writ petition is accordingly dismissed. Rule is discharged. Interim relief is vacated. The Petitioner is directed to vacate and hand over possession of area in his possession to the Respondents within a period of 6 weeks. The decree of eviction becomes executable after 6 weeks. this order. (M. M. SATHAYE, J.) akn 14/14