Dismissed

Smt. Subhadra Dayashankarlal and Anr. v. Shri Ramdas Bhairo Yadav and Ors.

Bombay HC1 Apr 2008FA/243/1986

Case brief

AI extract

What is this about?

In a civil appeal, the Bombay High Court dismissed the appellants' appeal against a judgment decree dismissing a suit for possession. The court held that appellants failed to prove their title as lessees because the alleged lease agreement was unregistered and inadmissible under Section 107 of the Transfer of Property Act, 1882.

What did the court decide?

Appeal dismissed; no error found in the decree passed by the Trial Court allowing respondents' adverse possession plea implicitly by rejecting title.

Smt. Subhadra Dayashankarlal and Anr. Vs Shri Ramdas… — Property and Title | Bombay HC (2008)

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SD

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

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 FIRST APPEAL NO.243 OF 1986

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 Subhadra Dayashankerlal & Anr. ...Appellants
 V/s.
 Ramdeo Bhairo Yadav & Ors. ...Respondents

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 Mr.Abhay Patki with Mr.R.D. Mishra, Advocates, for
 the Appellants.

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 Mr.G.K. Masand, Advocate, for Respondent Nos.1 to 3.

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CORAM : ABHAY S. OKA, J.

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DATE : 1ST APRIL, 2008.

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ORAL JUDGMENT:

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 1. The submission of the learned Counsel
 appearing for the parties were heard on 26th March,
 2008. However, on account of paucity of time, the
 Judgment could not be dictated and, therefore, the
 Appeal is kept today for dictation of the Judgment.

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 2. The appellants-original plaintiffs have taken
 an exception to the Judgment and Decree dated 8th
 October, 1984 passed by the learned Judge of the City
 Civil Court at Bombay in a suit filed by them.

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 3. Briefly stated the case of the appellants is
 that one Smt.Mandodari Devi Sukhdeo Prasad was in use
 and possession of the suit property more particularly

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 described in paragraph No.1 of the plaint. The
 specific case of the appellants-plaintiffs is that on
 8th April, 1979 an agreement was executed by the said
 Mandodari Devi in favour of the appellants by which
 she granted a lease in respect of land admeasuring 916
 sq.ft. out of the property described in paragraph
 No.1 of the plaint on yearly rent of Rs.300/-.
 According to the case of the appellants-plaintiffs
 they had applied during the life time of the said
 Mandodari Devi to the Municipal Corporation for
 permission to establish a bakery on the said portion
 of the land let out to them. According to the case of
 the appellants, they obtained a permission of the
 Municipal Corporation to establish a bakery.
 Subsequently they obtained provisional registration of
 the bakery as a small scale industry. The case made
 out by the appellants-plaintiffs is that they are in
 possession of an area of 1216 sq.ft. It is their case
 that the bakery is put up in the area of 916 sq.ft.
 and over the additional area of 300 sq.ft. a roof has
 been put up. The said area is on the rear side of the
 bakery premises.

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 4. According to the case of the

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 appellants-plaintiffs, the said Mandodari Devi died on
 27th March, 1980 leaving behind the appellants and one

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 Sunita Bhatnagar, as her heir and legal
 representatives. The case of the appellants is that
 the 1st respondent (1st defendant) was an employee of
 late Mandodari Devi who used to collect rent from the
 occupants of the chawl constructed on the said land by
 the said Mandodari Devi. It is contended that though
 the 1st respondent had no right, title or interest in
 respect of the land described in paragraph No.1 of the
 plaint or any part thereof, the said respondent
 illegally entered the bakery premises constructed and
 repaired by the appellants and has started tying one
 cow therein. It is alleged that in the additional
 portion of the said bakery the 1st respondent has put
 two bales of grass. It is alleged that the 2nd
 respondent is the son of the 1st respondent and the
 3rd respondent is a relative of the 1st respondent.

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 5. By amending the plaint, a case was made out
 that the 1st respondent forcibly dispossessed the
 appellants from the suit premises (i.e. the premises
 of the bakery) one week prior to the date of
 institution of the suit. By incorporating paragraph
 No.2a in the plaint, the appellants contended that as
 they have been dispossessed from the suit premises
 about a week prior to the filing of the suit, they
 were entitled to recover possession of the suit

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 premises under section 6 of the Specific Relief Act,
 1963. By the amendment, paragraph No.2b was
 incorporated in the plaint in which it was contended
 that if the Trial Court comes to a conclusion that the
 appellants have failed to establish that the
 respondents have trespassed into the suit premises
 within a period of six months prior to filing of the
 suit, a decree for possession be passed as the
 respondents have no right, title or interest in
 respect of the suit premises.

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 6. Initially the prayer in the suit was for
 perpetual injunction. At the time of carrying out
 amendment further averments were incorporated in
 paragraph No.4a to the effect that as the respondents
 were in wrongful possession of the suit premises, the
 appellants are entitled to recover compensation/
 damages at the rate of Rs.3,000/- per month. By
 incorporating paragraph No.4b, a case was sought to be
 made out for appointment of Court Receiver. The
 appellants prayed for a decree for possession against
 the respondents as well as a decree for mandatory
 injunction.

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 7. The suit was contested by the respondents by
 filing written statement. The contention of the

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 respondents in brief is that the suit premises always
 remained in possession of the 1st respondent and
 Smt.Mandodari Devi was in possession of the remaining
 portion of the property described in paragraph No.1 of
 the plaint. The respondents denied the case made out
 by the appellants regarding grant of lease by the said
 Mandodari Devi in their favour. The contention of the
 respondents was that the 1st respondent was in
 possession of the suit premises for more than 15
 years. Therefore, a plea of adverse possession was
 raised.

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 8. The respondents contended that the alleged
 agreement dated 8th April, 1979 executed by
 Smt.Mandodari Devi was a bogus and brought up document
 made by one Dayashankerlal Munshi who claims to be the
 husband of the appellants. The other allegations made
 in the plaint were denied by the respondents.

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 9. Specific case made out by the respondents was
 that originally late Sukhdeo Prasad and after his
 demise the said Mandodari Devi had appointed the 1st
 respondent to collect the rent from the tenants. As
 the said Mandodari Devi was not in a position to pay
 the salary to the 1st respondent for a period of 10
 years, a writing was executed by her acknowledging her

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 liability to pay the amounts to the 1st respondent.
 It is submitted that neither the said Sukhdeo Prasad

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 nor Mandodari Devi had made a claim against the 1st
 respondent on the basis of the possession of the 1st
 respondent of the suit premises. The allegations of
 trespass were denied by the 1st respondent by
 contending that the 1st respondent was always in
 possession.

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 10. After amendment to the plaint, supplementary
 written statement was filed by the respondents
 controverting the allegations made in the amended
 plaint.

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 11. The learned Trial Judge framed following

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 issues:-

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 "(1) Whether the suit is bad for
 non-joinder of the necessary parties
 as alleged in Paragraph 2 of the
 Written Statement?

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 (2) Whether the plaintiffs prove that
 they were in possession of the suit
 premises within six months prior to
 the date of filing of the suit i.e.
 June, 1981?

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 (3) Whether the plaintiffs prove that
 they have any title to the suit
 premises and they they were wrongfully
 and illegally dispossessed from the
 suit premises by the defendants in the
 month of May, 1981 as alleged in

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 paragraph 2 and 2(a) of the plaint?

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 (4) Whether the plaintiffs prove that
 the defendants are trespassers in the
 suit premises?

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 (5) Whether the defendants prove that
 they are in possession of the suit
 premises since about fifteen years,
 prior to the filling of the suit and
 have become the owners thereof by
 adverse possession as alleged in
 paragraph 5 of the Written Statement?

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 (6) Whether the plaintiffs are
 entitled to recover possession of the
 suit premises from the defendants?

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 (7) Whether the plaintiffs are
 entitled to recover the damages or
 mesne profit as alleged in Paragraph
 4(a) of the Plaint?

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 (8) What orders?

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 12. On behalf of the appellants-plaintiffs, one

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 Dayashankerlal Munshi stepped into witness box. The
 said Munshi claims to be the husband of both the
 appellants and the constituted attorney of the
 appellants. The appellants examined eight other
 witnesses. The 1st respondent examined himself and
 other four witnesses.

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 13. By the impugned Judgment and Decree dated 8th
 October, 1994, the suit was dismissed by the learned
 Trial Judge. In paragraph No.4 of the Judgment, the
 learned Trial Judge observed that the respondents did
 not claim any title to the suit premises except by

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 adverse possession. The learned Judge recorded that
 even according to the case of the appellants, their
 mother or father did not claim possession over the
 suit premises by lawful means and therefore, the
 learned Judge observed that both the parties to the
 suit were trespassers.

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 14. The learned Counsel appearing for the

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 appellants has taken me through the pleadings and
 notes of evidence of the witnesses. His submission is
 that even the respondents have not disputed the title
 of Sukhdeo Prasad and on his demise the title of
 Mandodari Devi. He pointed out that the 1st
 respondent was only a rent collector appointed by
 Sukhdeo Prasad and subsequently by Mandodari Devi. He
 submitted that the appellants are admittedly the legal
 representatives of Sukhdeo Prasad and Mandodari Devi.
 He pointed out a finding recorded by the Trial Court
 that the suit was not bad on account of non-joinder of
 appellants’ sister Sunita Bhatnagar. It is submitted
 that in view of what is stated in paragraph No.2b of
 the amended plaint, the suit cannot be treated as one
 under section 6 of the Specific Relief Act, 1963. He
 pointed out the averments made in the plaint which
 show that the appellants were inducted in respect of a
 portion of land admeasuring 916 sq.ft. by the said

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 Mandodari Devi as lessees. It is submitted that the
 said Mandodari Devi never objected to the occupation
 of the additional area of 300 sq.ft. by the
 appellants. His submission is that obviously the
 appellants being the legal representatives of the
 deceased Mandodari Devi were entitled to claim
 possession over the suit premises from the respondents
 and in particular from respondent No.1. His
 submission is that as the 1st respondent has failed to
 establish the plea of adverse possession, the decree
 for possession ought to have been passed by the Trial
 Court.

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 15. The learned Counsel appearing for the
 respondents supported the impugned Judgment and Decree
 by pointing out that the alleged document of lease was
 not proved by the appellants. He submitted that the
 appellants could not establish their independent title
 as lessees to occupy the suit premises and in any
 event they have not established their possession. He
 invited my attention to the various findings recorded
 by the Trial Court.

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 16. The first question which will have to be
 decided is whether the appellants have established
 their title as pleaded in the suit. As pointed out

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 earlier, the learned Counsel for the appellants has
 submitted that in view of what is averred in paragraph
 No.2b of the amended plaint, the suit was not treated
 by the appellants as a suit under section 6 of the
 said Act of 1963. Therefore, though the Trial Court
 has framed an issue No.2 which may indicate that the
 suit was one under section 6 of the Specific Relief
 Act, 1963, the issue No.3 has been framed regarding
 the title of the appellants-plaintiffs in respect of
 the suit premises. In short, if answer to the
 aforesaid question is affirmative, the title of the
 appellants will be established and in that event the
 plea of adverse possession raised by the respondents
 will have to be considered on merits.

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 17. In sofar as title pleaded by the appellants is
 concerned, the averments made in the plaint and in
 particular paragraph No.1 clearly show that the
 appellants are not claiming title in their capacity as
 the legal representatives of Sukhdeo Prasad or
 Mandodari Devi. In paragraph No.1 of the plaint, the
 appellants have specifically relied upon grant of
 lease by Mandodari Devi during her life time in
 respect of area of 916 sq.ft. at the yearly rent of
 Rs.300/-. In the later part of paragraph No.1, the
 appellants have stated that they occupied an

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 additional area of 300 sq.ft on the rear side of the
 bakery premises put up over the area of 916 sq.ft.
 The appellants have not claimed any rights as lessees
 or tenants in respect of the said additional area of
 300 sq.ft. At highest what can be said is that
 Mandodari Devi did not object to the occupation of the
 said additional area. Therefore, the title as claimed
 by the appellants-plaintiffs in the plaint is the
 title as lessees in respect of the area of 916 sq.ft
 out of the larger property described in paragraph No.1
 of the plaint. The case of the appellants is that the
 1st respondent was merely a rent collector who has
 forcibly occupied the suit premises and is a
 trespasser.

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 18. It will be necessary to refer to the
 deposition of Dayashankerlal Munshi who is the
 constituted attorney of the appellants. He claims
 that both the appellants-plaintiffs are his wives. In
 his deposition he claims that Sukhdeo Prasad was the
 owner of the property described in paragraph No.1 of
 the plaint. He relied upon an extract of inquiry
 register of the City Survey which was marked as
 Exhibit-"B". He also produced a property register
 card in evidence. According to him Sukhdeo Prasad
 died in August, 1968 who was survived by Mandodari

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 Devi, the appellants and one Sunita Bhatnagar. The
 said Mandodari Devi died on 17th March, 1980. The
 said witness reiterated that the 1st respondent was
 appointed as a rent collector by an agreement dated
 4th December, 1962. He produced the said agreement in
 evidence.

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 19. The said witness deposed that in the year 1979
 there was an agreement executed by the said Mandodari
 Devi in favour of the appellants. The said agreement
 dated 8th April, 1979 was sought to be produced in the
 evidence by the appellants. The witness claimed that
 he has signed the said documents on behalf of the
 appellants. He stated that the document was drafted
 by his Advocate Mr.R.D. Mishra who has signed the
 same as a witness. He stated that the bakery premises
 as well as the extended premises were constructed by
 the appellants in the year 1973-74. Thereafter,
 witness referred to various applications made by the
 appellants to the local authorities. Various
 documents relating to the for purchase of cement were
 produced. According to the version of the said
 witness, the work of repairing of the sheds of the
 bakery were carried on till 22nd/23rd May, 1981 He
 stated that the bakery shed was assessed to the
 Municipal taxes by the Municipal Corporation for the

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 period from 1st April, 1983 to 30th September, 1983.
 The said witness was extensively cross-examined by the
 Advocate for the respondents. It will be necessary to
 refer to the relevant part of the cross-examination as
 regards execution of the alleged document of lease.
 According to him the document was executed in the
 office of the R.D. Mishra, Advocate and the
 appellants were not present when the agreement was
 executed. When a query was made whether the
 appellants were desirous of examining Mr.R.D. Mishra,
 Advocate as a witness, the answer was after consulting
 his Advocate he would examine Mr.Mishra as a witness.
 The witness admitted that the agreement at Exhibit-K
 provides that the premises were taken on the basis of
 yearly rent.

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 20. The witness was confronted with an affidavit
 of Mandodari Devi dated 12th February, 1970 filed in
 Suit No.2194 of 1969. He stated that he was not the
 constituted attorney of Mandodari Devi and she had
 given a power of attorney to him only for one day. It
 is stated that he did not remember whether he has
 appeared as constituted attorney of Mandodari Devi in
 the aforesaid suit. He pleaded ignorance about the
 correctness of the contents of the affidavit dated
 12th February, 1970 filed by the said Mandodari Devi

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 in the suit.

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 21. Another witness examined by the appellants
 Sitaram Vitthal Govekar is a Rationing Inspector. His
 evidence has been adduced to prove that certain cement
 bags were sanctioned to the appellants for carrying
 out the construction work of bakery premises. The
 deposition of the said witness is not relevant for
 proving the title.

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 22. Third witness examined by the appellants is
 Harish Chandra Govind Suki who was at the relevant
 time the Rationing Inspector in the office of the
 Deputy Controller of Rationing, "E" Region, Wadala,
 Bombay. He stated that as a part of his duties he was
 required to go for site inspection. Again his
 evidence has no relevance as regards proof of title
 claimed by the appellants. The 4th witness examined
 by the appellants one Ganpati Pandurang Shinde who was
 a Recovery Clerk in the Encroachment Department of the
 Tahsildar. Witness No.5 is Tukaram Shankar Prabhu who
 was working as a Clerk in the Rationing Department.
 His only evidence could not throw light on the
 controversy regarding title. The 6th witness is one
 Mr.L.H. Pandya who was Assistant Engineer working
 with the B.M.C. He produced some record i.e. the

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 plans submitted by the appellants for seeking repair
 permission. The witness No.7 Mr.K.S. Kurup is again
 an Engineer working with the Bombay Municipal
 Corporation. Witness No.8 Mr.S.R.Karnik is an
 Architect who had drawn plans for repairing the
 structure of the bakery. Above said witness has been
 extensively cross-examined. 9th witness has been
 examined by the appellants is Dr.Kasinath Krishnaji
 Soman, a retired Ward Officer of "T" Ward, Mulund, of
 the Mumbai Municipal Corporation. He was examined to
 prove a signature on letter dated 20th December, 1979.

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 23. As pointed out earlier, document dated 8th
 April, 1979 which is an alleged agreement of lease
 marked as Exhibit-K was sought to be relied upon.
 Even assuming that the said document was duly proved
 in accordance with the provisions of the Indian
 Evidence Act, 1872, what was purported to be created
 by the said document was a lease from year to year or
 in any event for a term exceeding one year. As per
 section 107 of the Transfer of Property Act, 1882, a
 lease of immovable property from year to year or for
 any term exceeding one year or reserving an yearly
 rent can be made only by a registered instrument. It
 is not even the case of the appellants that the said
 document at Exhibit-K was a registered document.

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 Apart from the consideration of the other documents

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 relied upon by the appellants, the Trial Court has
 referred to the evidence of the 1st witness of the
 appellants as regards Exhibit-K. The learned Trial
 Judge has noted an important circumstance that though
 Mandodari Devi could go for execution of the said
 documents to the office of the Advocate, the
 appellants did not execute the said document and their
 husband and their alleged power of attorney holder
 executed the document. The constituted attorney of
 the appellants tried to make out a case that he had
 purchased stamp paper for execution of the lease and
 the said Mandodari Devi was with him when he purchased
 the stamp paper. A case was made out by the
 constituted attorney that the stamp paper was
 purchased from a vendor in a Small Causes Court at
 Bombay. The stamp paper on which the document at
 Exhibit-K has been executed does not support the case
 of the appellants that the same was purchased in the
 Small Causes Court. The learned Trial Judge found
 fault with the appellants on their failure to examine
 Mr.R.D. Mishra, Advocate as a witness who could have
 proved the execution of the document by Mandodari
 Devi. While referring to the conduct of the
 constituted attorney of the plaintiffs, the Trial
 Court in paragraph No.9 of the Judgment has observed

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 thus:-

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 "In the cross-examination, P.W. No.1
 Munshi has stated that he had married
 Subhadra on 1st July, 1970 and in 1976
 he married the second plaintiff
 Susheela. As regards the age of
 Susheela, in the cross-examination he
 has stated (Page 19) that Susheela
 started staying with him from 1972.
 He did not remember the age of
 Susheela in the year 1972. He could
 not say whether she was major in 1972.
 He also did not know the present age
 of Susheela. It is obvious that
 Mr.Munshi is avoiding to give age of
 Sushila, because in 1972, she was no
 major and did not even marry him.
 Therefore, it is difficult to accept
 the case of Munshi that Subhadra and
 Sushila were given possession of piece
 of land and they constructed a shed on
 the said piece of land in 1973. It is
 also difficult to accept the case of
 the possession because all the while
 the daughters and mother were staying
 together after death of Sukhdeo
 Prasad."

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 . The Trial Court rightly found that the version
 of the husband of the appellants was not sufficient to
 prove the execution of the document at Exhibit-K. In
 fact it was a case for drawing adverse inference
 against the appellants for not examining Shri R.D.
 Mishra, Advocate in whose presence the deceased
 Mandodari Devi allegedly executed the document. Shri
 Mishra was very much available for recording evidence.
 Therefore, the execution of the document is rightly
 held as not proved.

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 24. Considering all the aspects, the learned Trial
 Judge held that it was not possible to accept the case
 made out by the appellants that area of 930 sq.ft.
 was leased out by the Mandodari Devi to the appellants
 in the year 1973-74. As pointed out earlier, even if
 the said document at Exhibit-K is taken as proved, it
 was a compulsorily registerable document in view of
 section 107 of the said Act of 1882 and the said
 document is admittedly unregistered. It was not
 admissible evidence as a document creating a lease in
 favour of the appellants.

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 25. As pointed out earlier, the only basis of the
 title claimed by the appellants-plaintiffs was a lease
 (Exhibit-K). Apart from the fact that the Trial Court
 has found that execution of the said document is not
 duly proved and that Mr.R.D. Mishra, Advocate, was
 not examined, the said document is not admissible in
 evidence as a document of title for want of
 registration.

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 26. As pointed out earlier, the specific
 contention of the appellants was that the suit was not
 one under the section 6 of the Specific Relief Act,
 1963 and the suit was on the basis of title of the

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 appellants as lessees.

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 27. It is obvious that the appellants have not
 established their title as lessees in respect of the
 suit premises. As the appellants claimed possession
 as the lessees of Mandodari Devi, the learned Trial
 Judge has recorded a finding that the suit was not bad
 on account of non-joinder of their sister Sunita
 Bhatnagar. If the appellants were claiming title as
 the legal representatives of the said Mandodari Devi,
 the said sister was certainly a necessary party.

¶89

 28. The sum and substance of what is held above is
 that the appellants have failed to establish their
 title as lessees of the suit premises.

¶90

 29. The learned Trial Judge has accepted the fact
 that the 1st defendant was in possession and has not
 proved his plea of adverse possession. As the suit
 filed by the appellants is based on title as lessees
 and as they have miserably failed to prove the said
 title, it is obvious that the plaintiffs are not
 entitled to a decree for possession and other
 consequential reliefs.

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 30. There is no error in the decree passed by the

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 Trial Court. There is no merit in the Appeal and the
 same is accordingly dismissed with no orders as to
 costs.

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 31. At this stage, the learned Counsel appearing
 for the appellants prays for continuation of interim
 relief granted in the Appeal. Considering the fact
 that the Appeal is of the year 1986, the said interim
 relief will continue to operate for a period of 16
 weeks from today.

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[ABHAY S. OKA, J.]

Smt. Subhadra Dayashankarlal and Anr. v. Shri Ramdas Bhairo Yadav and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Subhadra Dayashankarlal and Anr. v. Shri Ramdas Bhairo Yadav and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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