Chandrakant C. Patel and Others v. Suryakant Shivlal Parmar and Others

16) The petition is opposed by Mrs. Sarkhot, the learned counsel appearing for Respondent No.1. She would submit that the Appellate Court has correctly held that the original deceased Defendant-Chhaganlal Motilal Patel was a mere licensee being in possession of only southeast portion of the suit premises. That the findings of fact recorded by Trial and Appellate Court, after re-appreciation of evidence cannot be disturbed by this Court in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. She would submit that the entire burden of proving exclusive possession of entire Gala No.5A was on the original deceased-Defendant, who has failed to discharge the same. She would rely upon judgment of this Court in Anwarali Ashrafali Versus. Abdul Aayyum Abdul Khaliqui[2], in support of her contention that failure to discharge burden of proof to demonstrate exclusive possession by original deceased-Defendant must necessarily result in passing of an eviction decree against him. She would submit that the deceased-Defendant did not produce even a single document to prove his exclusive possession of the suit premises. That he was merely permitted to keep and operate two lathe machines in the southeast corner of the suit premises. That the license for the operation of said lathe machines was also procured by the original Plaintiff, which itself demonstrates mere permissive use of the suit premises by the Original Plaintiff. That on the other hand, several documents are produced to prove that Suryakant Parmar, as well as Mr. Arvind Rathod also occupied some portion of the 2 1986 (1) Bom.C.R. 581 suit premises at the relevant time. She would rely upon writing dated 1 January 1973 by which the original Plaintiff-Harijivan Sunderji Mistry permitted M/s. Bina Electricals for operation of business after accepting deposit of Rs.2,500/-. She would also rely upon Certificate of Registration under the Bombay Sales Tax Act, 1959 issued in the name of Suryakant Shivlal Parmar on 18 March 1970 and Certificate of Registration under The Central Sales Tax (Registration and Turnover) Rules, 1957 on 31 January 1970 indicating his factory address as that of the suit premises. She would submit that additionally several documents were produced to prove occupation of Suryakant Parmar of suit premises.

17) Mrs. Sarkhot would also rely upon the decree passed by the City Civil Court in S. C. Suit No.5283/1985 to demonstrate joint possession of Suryakant Parmar in respect of the suit premises. She would submit that the said decree has attained finality as Defendant’s application for setting aside the decree has been rejected upto this Court. She would further submit that the deceased-Defendant and his heirs are attempting to secure a declaration of tenancy in an eviction suit lodged by the Plaintiff. That independently, the deceased Defendants/his heirs have not instituted any declaratory suit in respect of his alleged tenancy rights. That if Defendant really was the tenant in respect of the suit premises, he ought to have challenged the Deed of Assignment executed in favour of Suryakant Parmar. She would accordingly submit that on account of failure of the Defendant to secure a declaration of his tenancy, he has rightly been held to be a mere licensee for ordering his eviction in the suit instituted by the Plaintiffs. She would pray for dismissal of the petition.

18) Rival contentions of the parties now fall for my consideration.

19) Plaintiff-Mistry instituted L.E. & C. Suit No.41/50 of 1978 seeking recovery of possession of the suit premises from the original deceased-Defendant-Chhaganlal Motilal Patel contending that he was merely permitted to use southeast portion of Gala No.5A for operating his 2 lathe machines and did not have any right to remain in occupation of any portion of the suit premises after termination of the license by letter dated 6 September 1977. The suit was thus plainly for eviction of a licensee. It is the Defendant who added twist in the proceedings by filing Written Statement contending that he was a protected tenant in respect of entire Gala No.5A as he exclusively possessed it since the year 1953. Ordinarily, since Plaintiff treated the original deceased-Defendant to be a merely licensee in respect of some portion of Gala No.5A, the Defendant ought to have filed a declaratory suit seeking a declaration that he acquired the status of protected tenant under the provisions of Section 15A of the Bombay Rent Act on the basis of his assertion that he occupied the entire Gala No.5A as on the datum line. It would apposite to refer to the provisions of Section 15A of the Bombay Rent Act which provided thus: 15A. Certain licensees in occupation on 1st February 1973 to become tenants. (1)Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purpose of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation.

20) Thus, under the provisions of Section 15A of the Bombay Rent Act, if a person is in occupation of any premises or part thereof as on 1 February 1973 as a licensee, he acquires the status of a ‘protected tenant’. The definition of the term ‘tenant’ under Section 5(11) of the Bombay Rent Act includes, inter-alia, persons who are declared as deemed tenants under Section 15A. However, for claiming the status of a deemed tenant under Section 15A of the Bombay Rent Act, the twin conditions need to be satisfied, viz (i) such person must be in possession of the premises as a licensee as on 1 February 1973 and (ii) if he occupies only part of the premises, such part shall not be less than a room. Thus, Section 15A of the Bombay Rent Act does not contemplate recognising multiple persons occupying one room as licensees for being declared as deemed tenants. In other words, if it is found that multiple persons share a room as licensees as on 1 February 1973, none of them will acquire the status of a deemed tenant.

21) In the light of these peculiar provisions of Section 15A of the Bombay Rent Act, the moot issue that arose for consideration before the Trial and the Appellate Courts and which once again arises for consideration before this Court is whether the original deceased-Defendant occupied as a licensee the entire Gala No.5A or he occupied only portion thereof with remaining portion occupied by Plaintiff No. 2-Suryakant Parmar and Mr. Arvind Rathod as on 1 February 1973. There is no dispute to the position that there is a permissive use or a license granted to the Defendant by the original Plaintiff to occupy the premises. Thus presence of the Defendant as a licensee in the suit premises as on the datum line of 1 February 1973 is not seriously disputed. The real dispute is whether he occupied the entire Gala or only portion thereof.

22) Plaintiff pleaded in the plaint that ‘The plaintiffs due to his stringent financial condition, allowed the deceased Chhaganlal original defendant and one Mr. Suryakant Parmar now the Plaintiff No.2 to use and occupy some un-defined and un-demarcated portions of the said shop to carry on their work of business’. Additionally, Plaintiff also pleaded in para- 2 of the plaint that ‘The original deceased defendant abovenamed accordingly brought and installed with the 1st plaintiff’s said permission two Lathes (5’2’) in the South-east portion of the said shop. The original deceased defendant renovated the said lathes with the help of his son, while said Suryakant Parmar now Plaintiff No.2 worked his own machines installed with the like permission of the plaintiff No.1 in another portion of the Plaintiff’s said shop’. These are the averments in the original unamended plaint.

23) Thus, Plaintiff specifically pleaded in the plaint that original deceased Defendant-Chhaganlal, as well as Suryakant Parmar were permitted to use un-defined and un-demarcated portions of the suit shop for operation of their respective machines. The Plaintiff however maintained silence about the date on which said permission was granted to Chhaganlal Patel and Suryakant Parmar. On the other hand, Chhaganlal pleaded in his Written Statement that ‘The plaintiff has suppressed the fact that the suit shop was sublet by the plaintiff to the defendant since 1953 and that the defendant in in possession of the suit shop since 1953’. He further pleaded that ‘The plaintiff had sublet the entire suit shop to the defendant since 1953 and the defendant is in possession since 1953 and the defendant keeps machines like Lathe Machines, grinder and drilling machine for his dye making business in the suit shop as required by him’. He further pleaded that ‘The plaintiff had sublet in 1953, the entire shop to the defendant as stated above’.

24) Thus, there was direct contest between the Plaintiff and Defendant as to whether the license in respect of the suit shop was granted or whether the Defendant was a licensee only in respect of some portion of the suit shop. Coming to the aspect of burden of proof, since Plaintiff did not dispute Defendant’s presence in the suit premises as a licensee, nothing was required to be proved by him. In fact, though Plaintiff maintained silence about the date of induction of the Defendant as a licensee in respect of the suit premises, he or Suryakant Parmar who later became Plaintiff No.2 did not seriously dispute the position that Chhaganlal was a licensee as on 1 February 1973. In my view, therefore for deciding the suit for eviction of licensee, nothing really was required to be proved by the Plaintiff once he proved termination of license by letter dated 6 September 1977. On the other hand, since Defendant-Chhaganlal contended that the entire suit shop was sublet to him, the entire burden of proving that he was sub-tenant/licensee in respect of the entire suit shop clearly rested on his shoulders.

25) Prior to filing of the suit, Plaintiff served a notice dated 6 September 1977 on Defendant-Chhaganlal, the contents whereof more or less match with the contents of the plaint. However, what is interesting is the contents of Reply issued by the Deceased-Chhaganlal on 21 September 1977. In para-4 of the reply dated 21 September 1977, Defendant-Chhaganlal contended thus: ‘The premises mentioned in your letter under reference are in possession of our client since the year 1953. ….In the said premises our client has placed two lathe machines, one grinder and one drill machine. In the said premises at the request of our client, our client has allowed Suryakant Parmar to keep his two machines.’ (emphasis added) Thus, there is direct admission given by Defendant-Chhaganlal in the reply dated 21 September 1977 that Suryakant Parmar also occupied some portion of the suit premises through his two machines. The Defendant did not disclose the date on which Suryakant Parmar was permitted to keep his two machines in the suit premises. His contention that the suit premises were in his possession since 1953, coupled with admission of permission granted to Suryakant Parmar to keep his 2 lathe machines creates a serious doubt about the claim of the Defendant-Chhaganlal of being exclusive occupier of the entire suit shop as on 1 February 1973.

26) The Defendant, on his own, did not produce a single document to prove this exclusive possession of the entire suit premises as on the datum line of 1 February 1973. On the contrary, Plaintiffs produced plethora of documents to show joint possession of both, the Plaintiffs and Chhaganlal. Plaintiffs relied upon Shop Act license issued in the name of Plaintiff No.1-Harijivan Sunderji Mistry at the address of the suit premises and valid since the year 1978. They also relied upon license issued by the Municipal Corporation in the name of Harijivan Sunderji Mistry issued on 31 December 1978 and 26 June 1980. Thus, all the licenses for operation of machines were always issued in the name of the original Plaintiff No.1- Harijivan Sunderji Mistry and not a single license was issued in the name of Defendant-Chhaganlal. It is an admitted position that Chhaganlal operated his machines under the license issued in the name of the Original Plaintiff No.1. It therefore appears quite unbelievable that Defendant-Chhaganlal who claims to have exclusively occupied the entire suit premises as a subtenant since 1953, would operate his machines under the licenses issued in the name of original Plaintiff No.1. The fact that Plaintiff No.1 procured licenses for operation of machines by various users would by itself show non-exclusivity of possession of Defendant-Chhaganlal.

27) To make the case of Defendant-Chhaganlal worse, Plaintiffs relied upon certificate issued under Section 22 of the Bombay Sales Tax Act, 1959 issued in the name of Suryakant Shivlal Parmar on 18 March 1970 and Certificate of Registration under The Central Sales Tax (Registration and Turnover) Rules, 1957 on 31 January 1970 which are marked in evidence at Exhibits-J and K respectively. In the said Certificates issued in the name of Suryakant Parmar, the address of his factory is indicated as ‘6th Kumbharwada, Cross Lane, Kharwa Galli, Bombay.4’. This shows occupation of the suit premises by Suryakant Parmar as on 18 March 1970 by utlising the same as his factory. Ms. Sadh has attempted to suggest that ‘Gala No.5A’ is not reflected in the factory address of the said Certificates and that the address of business of ‘M/s. Bina Electricals’ of Shri. Suryakant Shivlal Parmar is indicated as ‘Near Round Temple, Bhandari St. Bombay.4’. However, there are variety of factors why the said contention of Ms. Sadh cannot be accepted. Firstly, no suggestion is given to the Plaintiffs’ witness that he had any other premises either at Khumbharwada or at Kharwa Galli. Similarly, in various other licenses issued under the Shop Act or by Municipal Corporation, the address of the suit premises is stated as ‘6, Khumbharwada, Kharwa Lane’. Therefore, mere failure to mention ‘Gala No.5A’ in the said Certificates dated 18 March 1970 and 31 January 1970 cannot be a reason for drawing a conclusion that the said Certificates are not issued in respect of the suit premises.

28) Thus, there is documentary evidence in addition to specific admission by Defendant-Chhaganlal in Reply dated 21 September 1977 that he also possessed the suit premises. The Certificate dated 18 March 1970 proved, beyond any shadow of doubt, that Suryakant Parmar was also occupying some portion of the suit premises as on the datum line of 1 February 1973. Thus, though the burden was on the Defendant to prove his exclusive possession of the suit premises as on the datum line of 1 February 1973, he failed to discharge the said burden and on the other hand, Plaintiffs conclusively proved that the deceased-Defendant did not exclusively occupy the suit premises as on 1 February 1973.

29) There is yet another factor which clearly suggests nonexclusive possession of the suit premises by deceased-Chhaganlal. The business of Original Plaintiff No.1- Harijivan Sunderji Mistry was purchased by Suryakant Parmar by Indenture of Assignment dated 2 January 1981 together with stock-in-trade, goodwill etc. The tenancy rights of Harijivan Sunderji Mistry also got transferred in the name of Suryakant Parmar in view of Notification issued by the State Government under the provisions of Section 15 of the Bombay Rent Act and Suryakant Parmar claims to have become the tenant in respect of the suit premises as on 2 January 1981. If Defendant-Chhaganlal indeed was a protected tenant after 1 February 1973, he ought to have objected to Harijivan Sunderji Mistry assigning his business together with tenancy to Suryakant Parmar. He ought to have challenged the Indenture of 2 January 1981 and in any case ought to have sought a declaration that execution of the said Indenture did not have the effect of transmission of tenancy rights in favour of Suryakant Parmar. In such proceedings, he ought to have pleaded and proved that Mistry himself never occupied any portion of the suit premises and therefore transfer of business would not entail transmission of tenancy of the premises. When his alleged status as protected tenant got disturbed by the Indenture dated 2 January 1981, the Defendant - Chhaganlal did not take any steps to seek a declaration of his tenancy rights by filing any proceedings. This is yet another factor which clearly destroys the alleged claim of Defendant- Chhaganlal of being a protected tenant in respect of the suit premises on the strength of alleged exclusive possession thereof as on 1 February 1973.

30) The conduct of Defendant-Chhaganlal and his heirs after institution of the suit by Suryakant Parmar in City Civil Court again completely destroys their claim of being a protected tenant in respect of the suit premises. Suryakant Parmar filed S.C. Suit No.5283/1985 in City Civil Court against the heirs of Defendant-Chhaganlal. The suit was filed by Suryakant Parmar complaining about the conduct of the Defendants therein in denying access to him to his portion of the suit premises by locking the same. It appears that initially temporary injunction was not granted in favour of Suryakant Parmar when the proceedings travelled upto this Court. However ultimately the suit came to be decreed in favour of Suryakant Parmar on 18 October 1998. The suit has been decreed in terms of prayer clauses-29(a) and (b) in the plaint which read thus: (a) That this Hon’ble Court be pleased to declare that the Plaintiff is entitled to use, occupy, possess and enjoy the portion of the premises shaded in green colour on Ex.A hereto and the loft in the said premises and is further entitled to enter into, remain upon and carry on his business and factory therefrom and that the defendant, his servants, agents and/or represetatives are not entitled to disturb, interfere with, stop, obstruct in any manner whatsoever to use, occupation, possession and enjoyment of the said premises of the plaintiff and the defendant is not entitled to put his lock on the door of the said premises being premises situated at Gala No.5A, Gojaria Shop No.1, bearing C.S. No.1/952, Kharwa Galli, Cross Lane, Bombay-400 004.; (b) That this Hon’ble Court be pleased to restrain the defendant, his servants, agents and/or representatives by a perpetual order and injunction of this Hon’ble Court from in any manner disturbing, obstructing, stopping, interfering with the peaceful and quiet use and occupation, possession and enjoyment of the said premises, being the portion of the premises shaded in gree colour on Ex.`A’ hereto and the loft situated therein in any manner whatsoever.

31) The decree passed by the City Civil Court in S.C. Suit No.5283/1985 though ex-parte, has attained finality on account of rejection of application filed by the Petitioners to set aside ex-parte decree under the provisions of Order 9 Rule 13 of the Code. Thus, as of today, Suryakant Parmar has right to occupy his portion of the suit premises in view of the decree passed in S.C. Suit No.5283/1985. This is yet another reason, though not the main reason, why deceased-Chhaganlal or his heirs cannot be treated as ‘protected tenants’ in respect of entire portion of the suit premises. The same would otherwise lead to passing of conflicting decrees. On the contrary, decree passed by the Small Causes Court in L. E. & C. Suit NO. 41/50 of 1978 directing ejectment of the Defendant-Chhaganlal and decree passed by the City Civil Court in S. C. Suit No. 5283/1985 preventing Chhaganlal from disturbing possession of Parmar go in tune with each other where Defendant-Chhaganlal and his heirs will get ousted from the suit premises and Suryakant Parmar will get an entry therein.

32) Much is argued by Ms. Sadh about the Appellate Court relying on evidence of Arvind Rathod claiming joint possession of the premises as on the datum line of 1 February 1973. Though the evidence of Arvind Rathod also convincingly disproves the claim of Chhaganlal about exclusive possession of the entire suit premises, in my view, his evidence is required to be ignored as there is no foundational pleadings in the Plaint averring that Arvind Rathod also occupied part of the premises at the relevant time. Therefore, though Plaintiff conclusively proved Arvind Rathod’s joint possession as on the datum line, the mistake committed by Plaintiff in not raising foundational pleading about his presence in the premises in the Plaint, would necessarily result in discarding Arvind Rathod’s evidence, however convincing the same may be. However unfortunately, even if evidence of Mr. Arvind Rathod is completely discarded, discarding of such evidence still does not come to the assistance of Defendant as it is conclusively proved that Suryakant Parmar was also jointly possessing the suit premises as on the relevant date.

33) Ms. Sadh has strenuously submitted that if indeed, Suryakant Parmar was in possession of any portion of the suit premises, the same ought to have been reflected in the Deed of Assignment of 1981. In my view mere absence of any covenant in the Deed of Assignment about possession of Suryakant Parmar of part of the suit premises, would not ipso facto lead to a conclusive presumption that Suryakant Parmar did not possess any portion of the suit premises as on the date of execution of the Deed of Assignment. By that Deed, what is purchased by Suryakant Parmar is the entire business of original Plaintiff-Mr. Mistry along with the stock in trade, goodwill etc and the tenancy rights of Mr. Mistry have incidentally delved upon Mr. Suryakant Parmar in view of Notification issued by the State Government under provisions of Section 15 of the Bombay Rent Act. Therefore, for purchase of the business and for incidental transmission of tenancy by virtue of purchase of the business, it was not at all necessary for Plaintiff-Mr. Mistry to reflect any covenant about joint possession of some portion of the premises by Mr. Parmar. Therefore, absence of any reference to joint possession by Mr. Parmar in the Deed of Assignment is inconsequential.

34) As observed above, Defendant-Chhaganlal and his heirs cannot seek a declaration in ejectment suit filed by the Plaintiff about their alleged tenancy rights. They ought to have filed a declaratory suit seeking declaration of their status as ‘protected tenants’. Though a defence was raised in L. E. & C. Suit No. 41/50 of 1978 that Defendant-Chhaganlal was a protected tenant in respect of the suit premises, he has failed to prove the said defence. The status of Defendant-Chhaganlal thus remained as a mere licensee in respect of some portion of the suit premises. Since the license was terminated by notice dated 6 September 1977, Defendant-Chhaganlal or his legal heirs did not have any right to remain in occupation of any portion of the suit premises. The suit thus has rightly been decreed by the Appellate Court. I do not see any valid reason to interfere in the findings recorded by the Appellate Court in absence of an element of perversity.

35) What remains now is to deal with the judgments relied upon by Ms. Sadh:

(i) The judgment in Chandavarkar Sita Ratna Rao Versus. Ashalata S.

Guram[3] is relied upon in support of her proposition that High Court cannot interfere in a finding unless the same is perverse or is based on no evidence or has resulted in manifest injustice. Far from assisting the case of the Petitioners, the judgment actually militates against them. The other proposition in the judgment is about creation of license either by landlord or tenant before 1 February 1973 and occupation of atleast single room for being conferred the status of a ‘deemed tenant’ under the Bombay Rent Act. Since Defendant-Chhaganlal failed to prove that he is in exclusive possession of the entire suit premises as on 1 February 1973, even that proposition does not support the case of the Petitioner.

(ii) The judgment in Ram Sarup Gupta (dead) by LRS Versus. Bishun

4 SCR 1987 (2) 805 contention that any evidence dehors the pleadings cannot be considered by the Court. There can be no dispute to this proposition and following the said proposition, I have completely ignored the evidence of Shri. Arvind Rathod about his alleged possession of part of the suit premises as on the datum line of 1 February 1973. Since, Plaintiff did not plead possession by Arvind Rathod in the suit, his evidence ought to have been discarded by the Appellate Court. Here, I am in full agreement with Ms. Sadh. However, even after ignoring the evidence of Arvind Rathod, exclusive possession of Defendant-Chhaganlal in respect of entire Gala No.5A is not proved in the present case.

(iii) The judgments in S.P. Chengalvaraya Naidu (Dead) by LRS

Versus. Jagannath (Dead) by LRS. and others[5] and Kiran Singh Versus. Chaman Paswan and others[6] are relied in support of the proposition that any judgment or decree obtained by fraud is required to be treated as nullity and can be questioned even in collateral proceedings. The judgment is apparently relied upon to get over the decree passed by the City Civil Court in S. C. Suit No.5283/1985. I do not see how the said decree has been secured by Suryakant Parmar by fraud. In any case, the said decree is not challenged in the collateral proceedings before the Small Causes Court. The judgment therefore does not have application to the facts of the present case.

(iv) The judgment in Shyam Behari Lal Versus. Lalla Jageshwar

7 1970(3) SCC 591 judicata on general principles can be successfully taken in respect of judgments of courts of exclusive jurisdiction. In my view, the judgment would have no application to the facts of the present case as this Court has not invoked the principle of res-judicata by relying on the decree passed in S.C. Suit No.5283/1985. The issue involved in L. E. & C. Suit No.41/50 of 1978 is being decided based on the pleadings and evidence of parties in that suit alone. The judgment rendered in SC Suit No. 5283/1985 by the City Civil Court merely bolsters up the claim of Plaintiff about nonexclusive possession Defendant.

36) The conspectus of the above discussion is that the Petitioners have failed to make out any valid ground warranting interference by this Court in the findings recorded by Appellate Bench of Small Causes Court as the findings do not suffer from the vice of perversity. There is no error in exercise of jurisdiction.

37) The Writ Petition is thus devoid of merits and it is accordingly dismissed.

38) Considering the facts and circumstances of the case, Petitioners are granted time upto 28 February 2025 to vacate the possession of the suit premises. Plaintiff shall be at liberty to withdraw the deposited amount in this Court with accrued interest. [SANDEEP V. MARNE, J.]