Dismissed

M/S. Vimal Corporation and Others v. M/S. Shree Shanti Textiles Mills Pvt.Ltd.

Bombay HC11 Nov 2009WP/4535/1992

Case brief

AI extract

What is this about?

High Court dismissed a writ petition challenging an appellate judgment that declared petitioners as lawful monthly tenants of respondent property. The Court upheld findings that tenancy continued post-sale and suit was within limitation.

What did the court decide?

Writ petition fails; judgment and order of the Appellate Court are reversed; no order as to costs.

M/S. Vimal Corporation and Others Vs M/S. Shree Shanti… — Property and Title | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4535 OF 1992

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1.M/s.Vimal Corporation,

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a partnership firm, having their address at Khetan Building, Opposite Ritz Hotel, Churchgate, Bombay – 400 020. (their present address being Flat No.2, 4^th floor, Vasant Mahal, `C’ Road, Churchgate, Bombay – 400 020.

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2.Vimala Balkrishna Modi

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3.Nitida Balkrishna Modi, Nos.2 and 3 being partners of No.1 above, having their office address at Khetan Building, Opp.Ritz Hotel, Churchgate, Bombay – 400 020.

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(their present address being Flat No.2), 4^th floor, Vasant Mahal, `C’ Road, Churchgate, ...Petitioners Bombay-400 020. (Ori.Defendants)

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Versus

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M/s.Shree Shanti Textiles Mills Pvt.Ltd., a Private Limited Company, duly incorporated under the Indian Companies Act and having its registered address at Shree Shanti Textile Mills Compound, Off.Chirag Nagar, Bombay Agra Road, Ghatkopar, ...Respondents Bombay – 400 086. (Ori.Plaintiffs)

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Ms.Asha Bhambwani for Petitioners.

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None for Respondents.

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CORAM : A.M.KHANWILKAR, J. DATED : NOVEMBER 11, 2009.

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JUDGMENT :

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This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the Court of Small Causes at Bombay dated 25^th August 1992 in Appeal No.377 of 1986, which in turn reverses the Judgment and Decree passed by the Judge of the Court of Small Causes at Bombay in R.A.D. Suit No.5688 of 1981. The said Suit was instituted by Original Plaintiffs/Respondents herein for declaration that the Plaintiffs/Respondents are the lawful monthly tenants of the Original Defendants/Petitioners herein in respect of the land purchased from one George Salins, admeasuring 2 acres situated at Chirag Nagar, Bombay-Agra Road, Ghatkopar, Bombay with a well, temporary shed and cement tanks standing thereon and known/used as “Dhobi Ghat”. The Plaintiffs/Respondents further prayed for injunction to permanently restrain the Defendants/Petitioners from entering into or upon the suit property or upon any part thereof and from erecting any building or structure thereon

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and from otherwise interfering with or interrupting the Plaintiffs/Respondents possession and enjoyment of the suit property without the due process of law. In the alternative, the Plaintiffs/Respondents further prayed that the Defendants/Petitioners be directed to deliver back to the Plaintiffs/Respondents possession of the suit land and thereafter not to disturb the possession of the Plaintiffs/Respondents.

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In the Plaint as presented, it is stated that prior to 1955, one M/s.Manahar Textile Mills Limited were seized and possessed of factories and leasehold rights in the suit land and premises being the suit property. The suit property was attached to the dyeing and printing factory of the said M/s.New Manahar Textile Mills Pvt.Ltd., which was taken on lease from the original owner Mr.Joseph Paul Pareira on a monthly rent of Rs.45/- and subsequently increased to Rs.55/- from 11^th May 1953. It is stated that the said M/s.New Manahar Textile Mills Pvt.Ltd. went into liquidation. As a result, in the winding up action M/s.Soloman & Company, Solicitors, were appointed as Liquidators. In furtherance to the order of winding up, the suit property was offered for sale in public auction to Uttamchand Manekchand Shah and Nyalchand Rupchand Shah, who constituted the firm M/s.Shree Shanti Textile Mills. The offer given by them was accepted by the liquidator

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and the suit property was agreed to be transferred under Agreement dated 11^th May 1953, whereunder, it was agreed to sell and assign the properties and factory of the said company in liquidation together with right, title and interest of the said Company in leasehold lands including the suit land. It is stated that in consideration of part payment of agreed sale price by the said Shri U.M.Shah and Shri N.R.Shah, the Liquidator on or about 1^st July 1953 delivered possession of the plant and machinery and other articles comprised in the said factories and incidentally also put them in possession of the leasehold land on which the said business and factories were operated, including the suit land. It is then stated that the original landlord Shri Joseph Pareira had already expired and his widow Smt.Ankithere had stepped in his shoes, who in turn, accepted M/s.Shree Shanti Textile Mills as her direct tenants and started receiving Rs.55/- per month from the said firm. It is stated that ultimately under a Deed of Assignment dated 18^th February, 1955 executed by the said M/s.New Manahar Textile Mills Ltd. and its liquidator the said Shri Soloman Moses, registered in the office of the Sub-Registrar, Bombay dated 23^rd December 1955, the said Company and its Liquidators sold, assigned and conveyed all their right, title and interest in the said land known as “Dhobi Ghat” incidental to the sale and assignment of its factories and business to and in favour of the said

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Uttamchand M.Shah and Shri Nyalchand R.Shah. It is the case of the Plaintiffs/Respondents that the said persons had purchased the business of the Company in liquidation as a going and running concern and thereafter, they carried on the same in the suit property. Later on, under an Agreement dated 23^rd November, 1955, the said Shri U.M.Shah and Shri N.R.Shah as the vendors sold, assigned and conveyed to the Plaintiffs/Respondents (M/s.Shree Shanti Textile Mills Pvt.Ltd.) all their right, title and interest in their said business and incidental thereto, their right, title and interest in the suit land. The Plaintiffs/Respondents after coming into possession of the suit property started paying the rent to Ankithere who accepted the Plaintiffs/Respondents as direct tenant on the monthly rent of Rs.55/-. It is stated that later on by a Deed of Assignment dated 14^th March, 1958 duly registered in the office of the Sub-Registrar, Bombay under Registered No. 2256 of Book No.1 dated 29^th July, 1958 the said U.M.Shah and N.R.Shah as vendors sold assignment and conveyed to the Plaintiffs/Respondents all their right, title and interest in the business of M/s. Shree Shanti Textile Mills and incidental thereto, their right, title and interest in the suit property to Plaintiffs/Respondents. It is stated that the transfer firstly in favour of Shri U.M.Shah and Shri N.R.Shah and thereafter in favour of the Plaintiffs/Respondents is duly entered in the Government Property Records.

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It is then stated that under the Deed of Conveyance dated 18^th September 1958 entered between said Smt.Ankithere widow of Joseph P.Pareira and her son Peter Paul Pareira on the one hand as Vendors’ and one George Salins on the other hand as Purchaser’, they sold and conveyed the suit property to said George Salins. In the said transaction, one Shri Thomas D’Cunha, acted as Advocate for the purchaser George Salins. It is stated that thereafter the said Advocate Shri D’Cunha received the monthly rent of the suit land from the Plaintiffs/Respondents whenever the Plaintiffs/Respondents remitted the same in respect of the suit property to him, for and on behalf of George Salins, the subsequent owner of the property. The Plaintiffs/Respondents have placed reliance on the entries in the Books of Accounts maintained in the regular course of their business to substantiate that payment towards rent was made to Mr.Thomas D’Cunha on month to month basis between November 1955 to June 1964. In July 1964, it is stated that the Plaintiffs/Respondents came to know that the suit property was sold by Shri George to Defendants/Petitioners. For that reason, since July 1964, the Plaintiffs/Respondents No.1 started remitting the monthly rent of the suit land to Defendants/Petitioners. In the Plaint, reference is made to four such payments by cheque in the sum of Rs.55/-, Rs.275/-, Rs.275/- and Rs.110/- respectively, covering rents for different

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periods between July 1964 to July 1965. It is stated that the said cheques were not encashed. For that reason, reverse entries were made in the Books of Accounts and since the latest address of Defendants/Petitioners was not known, no further remittances of rents were made. Instead, the Plaintiffs/Respondents continued to credit in their Books of Accounts amount towards monthly rents payable to the Defendants/Petitioners. It is then stated that since the time, the Defendants/Petitioners purchased the suit property, they avoided to accept any amount from the Plaintiffs/Respondents, particularly, towards monthly rents, though tendered by the Plaintiffs/Respondents from time to time by different modes. Therefore, the Plaintiffs/Respondents by their Advocate’s letter dated 25^th July 1979 sent to the Defendants/Petitioners herein at their last known address recorded the said position and expressed their readiness and willingness to pay the outstanding dues towards rent. It is stated that even the said legal notice was returned with postal remarks “Not Known”. It is then stated that while in possession, the Plaintiffs/Respondents had permitted their employees to erect hutments on a portion of the open land for use as Employees’ Residential Quarters. Around 18 hutments were erected by their employees. The remaining open land was used for washing and dyeing the textile cloth. It is stated that the suit property is a vast open

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land which remained unutilised and unprotected from outside interference.

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It was noticed that unknown persons attempted to commit trespass and erected hutments unauthorisedly on different parts of the land. But their attempts were foiled from time to time. Even complaints were lodged with the Police Stations in that connection. It is then stated that in the last week of November 1981, the Plaintiffs/Respondents have come to know from the Municipal Office at Ghatkopar that the Defendants/Petitioners were contemplating to develop the suit property and even had submitted building plans for sanction and approval. Immediately thereafter, the Plaintiffs/Respondents rushed to file the subject Suit for declaration, injunction and alternative relief of possession. The Suit was filed on 17^th December 1981.

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The Suit was resisted by the Defendants/Petitioners. In the written statement, the stand taken by the Plaintiffs/Respondents was stoutly denied. The specific case made out by the Defendants/Petitioners was that the suit land and structure was not attached to M/s.New Manahar Textile Mills Ltd. and therefore, could not have formed part of sale of assets of the said Company in liquidation by the Liquidator. The Defendants/Petitioners have specifically denied that the said Company in liquidation was ever in

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possession of the suit property. Whereas, it was asserted that the Defendants/Petitioners were in actual possession of the suit property since the time they purchased the same from George Salins by registered Conveyance Deed dated 19^th March 1964. The Defendants/Petitioners have asserted that the said Conveyance was entered only after issuance of public notice but no claims were registered. Moreover, the Defendants/Petitioners were paying municipal taxes in respect of the suit property. In fact, the Defendants/Petitioners were required to file several Suits against third parties to protect their possession of the suit property. In substance, the case of the Defendants/Petitioners is that the Plaintiffs/Respondents had no concern with the suit property and were never in possession thereof. On the basis of the rival pleadings, the Trial Court framed as many as six issues

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and answered the same as indicated hereunder:

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ISSUES FINDINGS

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Is the suit barred by law of limitation? Yes.

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Do Plffs.prove that they have paid proper Court fee on the relief for possession of the suit property? Not pressed.

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Do plffs. prove that they are entitled to be declared lawful monthly tenants of defts.

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in respect of the suit property? No. 4. Do plffs. prove that they are entitled to an order of permanent injunction as prayed in para 20(b)? No. 5. Do plffs. prove that they are entitled to order and decree for delivery of possession of the suit premises by defts. to plffs. as mentioned in para 20 (e-i)? No. 6. What order and decree? Suit dismissed.

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Consistent with its findings on the abovesaid issues, the Trial Court proceeded to dismiss the Suit with cost.

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Against the said Judgment and Decree, the Plaintiffs/Respondents carried the matter in Appeal before the Appellate Bench of the same Court being Appeal No.377 of 1986. The Appellate Court formulated three points for its consideration and answered the same in favour of the Plaintiffs/Respondents and against the Defendants/Petitioners. The Appellate Bench has held that the Suit was not barred by limitation. Further, the Plaintiffs/Respondents were lawful tenants in the suit premises since 1955 onwards. Consistent with the said findings, the Appellate Bench was pleased to allow the Appeal and pass the following order:

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“ ORDER

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Appeal allowed. No order as to costs.

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The order and Judgment dt.3.5.1986 in R.A.Decl.Suit No.5688 of 1981 is set aside and in its place the following order is substituted:-

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“R.A.Declaratory Suit No.5688 of 1981 is decreed in the following terms:-

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It is hereby declared that the appellants are the lawful monthly tenants of the respondents in respect of the lands, hereditaments and premises altogether admeasuring 2 Acres and known as “Dhobi Ghat” and more particularly described in Ex.A to the plaint and situate at Chirag Nagar, Ghatkopar, Bombay 400 086. The respondents, their agents and servants are also hereby restrained permanently by an order and injunction of this Hon’ble Court from entering into or upon the said property described in Ex.A annexed to the plaint and/or upon any part thereof and/or from erecting any buildings or structures thereon or on any part thereof and/or from otherwise interfering with or interrupting the appellants possession and enjoyment of the suit premises, without due process of law.

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No order as to costs in the suit.”

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The Defendants/Petitioners, therefore, have approached this Court

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by way of Writ Petition under Article 227 of the Constitution of India contending that the Appellate Court not only misdirected itself in reversing

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the well reasoned finding of facts recorded by the Trial Court but committed manifest error in opining on matters in issue, which opinion essentially is founded more on surmises and conjectures than tangible

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evidence to substantiate the same. Although the Plaintiffs/Respondents have been duly served, no appearance was made when the matter was called out for hearing. Since the matter pertained to year 1992, the only option for the Court was to proceed with the hearing of the case by taking assistance of Counsel appearing for the Defendants/Petitioners. I would place on record my appreciation for the Counsel for the Defendants/Petitioners for her able assistance given to the Court. She invited my attention to all the relevant material on record to challenge the finding of fact recorded by the Appellate Court. The Advocate has also filed detailed synopsis as well as written submission.

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Considering the issues that have been addressed by the Courts below and the oral arguments canvassed before this Court, broadly three points would arise for my consideration. Firstly, whether the Suit as filed was barred by limitation. Secondly, whether the Plaintiffs/Respondents were lawful tenants in the suit property. Thirdly, whether the Plaintiffs/Respondents were always in possession of the suit property.

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Ordinarily, I would have straight away dealt with the issue of limitation. However, after examining the pleadings and other materials on

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record, I was convinced that the issue of limitation in the fact situation of the present case was a mixed question of fact and law. As a matter of fact, much would depend on the finding to be reached in the context of Point No. 3. If it were to be held that the Plaintiffs/Respondents had lost possession in and around the property was purchased by the Defendants/Petitioners by Conveyance Deed dated 19th March 1964, it would logically follow that the Suit was barred by limitation, having been filed in the year 1981. In my view, therefore, it would be appropriate to deal with the issue of limitation a little later.

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Before we proceed to consider the points on merits, the parameters to interfere in exercise of writ jurisdiction under Article 227 of the Constitution of India will have to be kept in mind. By now, it is well established position that merely because there is some error here or there, that can be no basis to exercise writ jurisdiction under Article 227 of the Constitution of India. The error must be manifest and apparent on the face of the record and a grave injustice or failure of justice has occasioned. The High Court does not sit in appeal over the findings recorded by the subordinate Court. The jurisdiction is only supervisory (See B.K.Muniraju vs. State of Karnataka – (2008) 4 SCC 451). In the present case, the finding

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on facts recorded by the Courts below is divergent only in part. In that, both the Courts below have concurrently found that the original tenant in the suit property was M/s.New Manahar Textile Mills Ltd. The said Company went into liquidation. The Liquidator was made in-charge to dispose of the assets of the Company in liquidation, who in turn auctioned the rights of the Company in liquidation in the suit property. The firm M/s.Shree Shanti Textile Mills constituted by Mr.U.M.Shah and Mr.N.R.Shah purchased the rights of the Company in liquidation in the suit property in that public auction in 1953 after bidding. On that basis, an Agreement was entered between the Official Liquidator and Mr.U.M.Shah and Mr.N.R.Shah, whereunder they were put in possession and took over the rights of the Company in liquidation in the suit property and the structure standing thereon as a going concern from the liquidator. It was an involuntary transfer. Subsequently, a registered Deed of Assignment was executed in favour of the purchasers on 18th February, 1955. The said purchasers later on transferred their business as a going concern to the Plaintiffs/Respondents and the rights incidental in the suit property in favour of the Plaintiffs/Respondents by Agreement dated 23rd November 1955 and the registered Deed of Assignment dated 14^th February, 1958. Both the Courts below have also concurrently found that since the time the

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Plaintiffs/Respondents became tenant, they started paying monthly rent to Ankithere widow of the original owner of the suit property Joseph P.Pareira. She recognised the Plaintiffs/Respondents as her direct tenants in the suit property. The Plaintiffs/Respondents continued to pay monthly rent to her till September 1958 when the suit property was sold in favour of George Salins. The Plaintiffs/Respondents continued to pay amount towards monthly rent to Mr.D'Cunha by sending money order until July 1964 till they realised that the property was sold to Defendants/Petitioners herein under registered Conveyance Deed dated 19th March 1964.

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The Trial Court, however, then proceeded to consider the case of the Plaintiffs/Respondents that after realising that the suit property was transferred by said George Salins in favour of Defendants/Petitioners herein, the Plaintiffs/Respondents started remitting the monthly rent by cheque directly to the Defendants/Petitioners, which, however, were returned back unencashed. The Trial Court opined that after the cheques were returned to the Plaintiffs/Respondents, no explanation was forthcoming as to why the Plaintiffs/Respondents did not take any action on that basis until filing of the present Suit in the year 1981. It then proceeded to infer that the Plaintiffs/Respondents may have lost possession of the suit

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property in or around the time the Defendants/Petitioners purchased the suit property from George Salins on 19th March 1964. That opinion was founded on the circumstances that the document of Sale Deed Exhibit 24 clearly mentioned that the possession of the suit property was handed over to the Defendants/Petitioners at the time of execution of the said document and the document makes no reference to any existing tenancy rights in the suit property. The Trial Court has found as of fact that it is not disputed that the property sold under document Exhibit 24 was the same as the suit property described by the Plaintiffs/Respondents. It discarded the municipal assessment bills cum receipt produced by the Plaintiffs/Respondents as they pertained to period prior to March 1964 and were of no avail to substantiate the plea of possession of the Plaintiffs/Respondents on or after March 1964. It further found that the Plaintiffs/Respondents have failed to lead oral evidence to substantiate that they were in possession of the suit property after 19th March 1964. Further, that no explanation was forthcoming from the Plaintiffs/Respondents as to why no assessment bills were received in the name of Plaintiffs/Respondents from the Corporation. The Trial Court then placed reliance on the evidence of Plaintiffs/Respondents witnesses who had stated in their oral testimony that Plaintiffs/Respondents have stopped using the suit property for their business activity in 1964 for the

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purpose for which it was used in the past. The Plaintiffs/Respondents’ witness admitted to have stopped work of bleaching, etc. in the suit property in and after 1965. The Trial Court also drew adverse inference against the Plaintiffs/Respondents because they failed to examine George Salins, who transferred the property in favour of the original Defendant No.1. The Trial Court also discarded the evidence of Plaintiffs/Respondents’ witnesses that the workers/employees of the Plaintiffs/Respondents were allowed to erect structures on the suit property while in service as the Plaintiffs/Respondents failed to examine any of the workers/employees. On the basis of the view so recorded, the Trial Court proceeded to hold that the Plaintiffs/Respondents have had lost possession of the suit property in or around the time the property was purchased by the original Defendant No.1 from George Salins on 19th March 1964 which was more than twelve years next before the filing of the Suit. Notably, the Trial Court proceeded to hold that the evidence on record unmistakably points out that Plaintiffs/Respondents were tenants of the suit property till the time the ownership thereof stood transferred to George Salins by virtue of Conveyance Deed dated 18^th September 1958. The Trial Court then found that the Plaintiffs/Respondents have failed to show that their tenancy in respect of the suit property continued after the suit property stood transferred to George Salins. This

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opinion is reached on the finding that the Plaintiffs/Respondents were not in a position to establish the fact that the payment made by them from time to time to one Mr.D’Cunha, Advocate was towards monthly rent and that the said person was authorised to collect the monthly rent for and on behalf of George Salins till 1964. The Trial Court discarded the entries in the Account Books of the Plaintiffs/Respondents for the relevant period as it found that there was no evidence to hold that Mr.D’Cunha, Advocate was advised to collect monthly rent on behalf of George Salins. For that reason, the Trial Court opined that the Plaintiffs/Respondents were not in possession of the suit property or they had lost or surrendered the same before the property was sold by George Salins to the original Defendant No. 1. In Paragraph No.41 of its Judgment, the Trial Court has noted that on review of the evidence on record, it was possible to trace Plaintiffs/Respondents’ tenancy in respect of the suit property till the same stood transferred to George Salins in the year 1958 and could be traced even till a year or two before 1964 when George Salins sold the same to Defendants/Petitioners on 19^th March 1964. But there was absolutely no evidence to indicate that the Plaintiffs/Respondents continued to enjoy the same status in the suit property after 1964. It further held that the Sale Deed in favour of the Defendants/Petitioners clearly indicates that George

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Salins put the Defendants/Petitioners in actual possession of the suit property. In other words, the Trial Court has found that the Plaintiffs/Respondents were inducted in the suit property as tenants thereof and remained in possession in that capacity almost till George Salins, the owner of the property transferred the suit property in favour of the Defendants/Petitioners. It is on that premises, the Trial Court opined that the Plaintiffs/Respondents were not lawful tenants in the suit property and having lost or surrendered possession thereof in or around 1964 were not entitled for any relief as claimed by them.

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The Appellate Court on the other hand re-appreciated the evidence and material on record. It has concurred with the opinion of the Trial Court that there was sufficient evidence to indicate that M/s.New Manahar Textile Mills Ltd. was the original tenant, which Company went into liquidation. The Official Liquidator transferred the rights of the Company in liquidation in the suit property as a going concern in favour of the predecessor of the Plaintiffs/Respondents. The Plaintiffs/Respondents came on the scene on account of the Agreement dated 23^rd November 1955. Further, the Plaintiffs/Respondents were accepted as tenants by the original owner Ankithere, widow of Joseph P.Pareira. Monthly rent was offered to

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her from time to time till the property was transferred to George Salins under Agreement dated 18^th September 1958. Insofar as concurrent finding of fact reached by the two Courts below of existence of right of the Plaintiffs/Respondents as tenants in the suit property till 1958, is unquestionable. Indeed, the Defendants/Petitioners have made attempt to challenge these findings but after going through the material on record, I have no hesitation in taking the view that the two Courts below have analysed the evidence on record and have reached at that conclusion which was the only possible view in the fact situation of the present case.

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According to the Defendants/Petitioners, however, admittedly, the Plaintiffs/Respondents have failed to produce any rent receipts or oral evidence to prove payment of rent first to Joseph P.Pareira up to 1949 and thereafter, to his widow Ankithere and Peter Pareira till 1953. More so, no evidence is produced to prove the factum of how the tenancy was created.

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This argument is devoid of merits. The Courts below have considered not only the oral evidence but also the documentary evidence to conclude that

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the suit property stood transferred in favour of the predecessor of Plaintiffs/Respondents in public auction which was an involuntary transfer. The Plaintiffs/Respondents came on the scene by virtue of Agreement dated

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23^rd November 1955 executed in their favour by their predecessor. The said Agreement has been proved. The Plaintiffs/Respondents have examined Peter Joseph Pareira as PW 4 who has deposed that his mother used to receive monthly rent from the Plaintiffs/Respondents till the property was transferred to George Salins. The Plaintiffs/Respondents have produced the entries in the Books of Accounts for having paid monthly rent from time to time to the landlords/owners. The evidence produced by the Plaintiffs/Respondents has been accepted by both the Courts below as unimpeachable and sufficient to record the finding as reached. Nonproduction of rent receipts or oral evidence to prove the initial Agreement of tenancy or existence of tenancy until 1949 or thereafter till 1953, would make no difference, keeping in mind, the oral and documentary evidence on record which substantiates the Plaintiffs/Respondents’ plea that after 1955 till 1958, the Plaintiffs/Respondents were accepted as tenants by Ankithere and Peter Pareira in respect of the suit property. It was then argued that the bills in respect of suit property Exhibit 2 and Exhibit 3 could not be looked into to answer the point in issue. Once again, this argument is inviting the Court to re appreciate the evidence on record, which is not the scope of exercise of writ jurisdiction.

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Insofar as the period from 1953 to 1955, according to the Defendants/Petitioners, the opinion recorded by the Appellate Court for non accepting the objections regarding exhibition of the documents is incorrect and if the said documents were to be disregarded, the factual matrix asserted by the Plaintiffs/Respondents about the existence of tenancy in respect of the suit property will have to be negatived. This argument cannot be countenanced on both the counts. Insofar as exhibition of documents in question, the Appellate Court has given eight good reasons in support of its opinion. There is no infirmity in the reasons so recorded. In any case, there is no manifest error committed by the Appellate Court which would persuade me to overturn the direction of exhibition of documents in question referred to in Paragraphs 43 and 44 of the impugned Judgment. The reasons so recorded by the Appellate Court for exhibition of the said documents need no interference. In any case, as observed earlier, insofar as the finding of both the Courts below about Plaintiffs/Respondents having established the fact that they were tenants in the suit property till 1958 and were paying monthly rent to the owner of the property at the relevant time is unexceptionable.

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The divergence of opinion of the two Courts below is in respect of

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period after 1958. In the first place, the Trial Court has found that the Plaintiffs/Respondents continued to remain in possession of the suit property even after the same was transferred in favour of George Salins by virtue of Deed dated 18th September 1958. The Trial Court, however, noticed that the Plaintiffs/Respondents were not in a position to establish that they continued to remain in possession of the property till March 1964 when the suit property was transferred in favour of original Defendant No.1 by Conveyance dated 19th March 1964. It has found that just before or in or around 19th March 1964, the Plaintiffs/Respondents must have lost possession thereof or surrendered their right in the suit property. This opinion recorded by the Trial Court has been thoroughly analysed by the Appellate Court on the basis of the evidence on record. The Appellate Court, in the first place, opined that monthly tenancy is always coupled with the possession of the premises, of which the monthly tenancy is claimed and with the payment of rent of the premises of which the person is monthly tenant. It has noticed that possession and the payment of rent from 1955 onwards till the date of Suit would no doubt be an important feature to be considered to examine the point in issue. Insofar as factum of payment of rent between 1955 till 1958, the Appeal Court has considered the same in Paragraphs 47 and 48 of the impugned Judgment. It has adverted to the

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Deed of Conveyance dated 18th September 1958 Exhibit X-2 collectively, rent receipts Exhibit X-5 collectively, oral evidence of PW 1, PW 2, PW 4 and PW 6, entries in the Ledger Books of Accounts for the relevant period. Significantly, it has construed the Deed of Conveyance dated 18th September 1958 as a whole and has noticed that the same clearly refers to the fact that there was some sitting tenant in the suit property even though the name of the tenant is not specifically disclosed. That finding is reached in view of the contents of the document which records that the right in respect of structures and premises and every part thereof include the arrears of rent from tenants or licensees to be exercised by the transferee. The Court has inferred that it presupposes that the parties to the document were conscious that there was some sitting tenant or licensee in the suit property without which such a Clause would not have been provided. Suffice it to observe that insofar as period from October 1958 when George Salins became the owner till 1964 when the suit property was transferred in favour of the original Defendant No.1, the Appellate Court has considered all the relevant pleadings and evidence on record from Paragraphs 49 and onwards. The Appellate Court has noticed that even after September 1958, the monthly tenancy of the Plaintiffs/Respondents in respect of the suit property continued and they remained in possession. The fact that tenants and

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licensees were in possession can be discerned from the condition specified in the Conveyance Deed dated 18th September 1958 Exhibit 26. It then considered that no notice of attornment was given to the tenants after the transfer in favour of George Salins. It has then adverted to the Agreement of Sale dated 3rd April 1963 (Exhibit 25) between George Salins and the original Defendant No.1, whereby George Salins agreed to sell the suit property to Respondents on certain terms and conditions. Clause 4 of the said Agreement (Exhibit 25) clearly provides that the purchaser shall purchase the land as in its present condition with full knowledge that portions of the land are in possession of different trespassers. It further mentions that the vendor has given in writing to the purchasers a list of the names of persons who were in occupation of the land at the time when the Vendor purchased the land and has further informed the purchasers that all the occupants subsequent to the purchase of the land by the Vendors are trespassers and have encroached upon different portions of the land illegally. The Appellate Court has noted that the list which was given by the Vendor to the original Defendant No.1 at the time of execution of the said Agreement was very crucial, as it would disclose the names of the occupants (tenants or licensees) at the relevant time. However, the said list was not produced by the Defendants/Petitioners though within their

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possession. To get over this position, it was contended before this Court that the contents of the Deed of Conveyance(Ex.26), even taken as it is, would not lead to the presumptions drawn by the Appellate Court. It does not prove the existence of the tenancy of the Plaintiffs/Respondents. It does not mention the name of the Plaintiffs/Respondents as one of the sitting tenants nor does it indicate that the purchaser George Salins had knowledge of the fact that the Plaintiffs/Respondents were one of the sitting tenants. Therefore, it was preposterous to assume that the document would indicate that the Plaintiffs/Respondents were the sitting tenants in the suit property. The argument clearly overlooks that the Appellate Court arrived at the finding not only on the basis of contents of Ex.26, but also considered the contents of the agreement of sale dated 3^rd April, 1963(Ex.25) which reinforces the position that the suit property was in occupation of tenants/licensees. Indeed, these documents by themselves do not disclose the name of the sitting tenants/licensees but certainly the same refer to fact of list of persons in possession which list was made over to the Defendants/Petitioners when the Agreement(Ex.25) was entered. The said list is not forthcoming, which could be produced only by the Defendants/Petitioners. The Defendants/Petitioners did not even choose to examine the erstwhile owner George Salins to belie the claim of the

¶91

: 27 :

¶92

Plaintiffs/Respondents that they were in occupation of the suit property even during the period of ownership of George Salins. Besides, the Appellate Court has also taken into account the fact that the Defendants/Petitioners after purchasing the suit property instituted Suit against the trespassers. Admittedly, no Suit has been filed either against the Plaintiffs/Respondents or their workmen/employees who had erected structures in the suit property while in service. The fact that such action was not instituted against the Plaintiffs/Respondents or its workmen/employees, it would necessarily follow that the occupation of the Plaintiffs/Respondents and its workmen/employees in the suit property was always considered to be lawful and proper. It found that the best evidence available with the Defendants/Petitioners was suppressed from the Court. The Appellate Court has also noticed that even the subsequent purchaser namely the original Defendant No.1 did not issue letter of attornment to the Plaintiffs/Respondents. As a result, the Plaintiffs/Respondents continued to pay monthly rent to Mr.Thomas D'Cunha, Advocate, which was received for and on behalf of George Salins till June 1964, even after execution of Conveyance Deed in favour of original Defendant No.1. The Plaintiffs/Respondents by oral as well as documentary evidence have established that they continued to pay amount towards monthly rent to

¶93

: 28 :

¶94

Mr.D'Cunha, Advocate until July 1964. On realising that the property is now transferred to the original Defendant No.1, the Plaintiffs/Respondents started remitting the amount towards monthly rent by cheque to the original Defendant No.1 almost up to a period of one year but the cheques remained unrealised and returned. Insofar as the finding recorded by the Appellate Court regarding payment made to Mr.D'Cunha, that is supported by the oral and documentary evidence on record. The money orders were directed to be marked as Exhibits, as the Appellate Court noticed that no objection was raised for production of these postal slips as would appear from the notes of appearance. The Defendants/Petitioners had objected to only the acknowledgment duly signed by Mr.D'Cunha when the same was tendered by PW 1 which was kept as X-7 collectively for identification. The Appellate Court then noticed the finding of the Trial Court on the basis of which the said acknowledgments Exhibit X-7 collectively were discarded. The Trial Court had opined that no evidence to prove that such money orders were made to pay rent in respect of the suit property under instructions of George Salins and it was the bare words of PW 1 and PW 2 that the amount so remitted to Mr.D'Cunha was towards payment of rent only. The Appellate Court in the first place opined that the amount sent by money orders under slips Exhibit B collectively and the acknowledgments

¶95

: 29 :

¶96

duly signed by Mr.D'Cunha, Exhibit X-7 collectively could not have been for any other purpose but towards payment of rent. This finding is on the basis that the said Mr.D'Cunha acted for and on behalf of George Salins, when the Conveyance in favour of George Salins was executed and the amount remitted from time to time corresponded with the amount towards monthly rent of the suit property. Insofar as non-availability of George Salins is concerned, the same stood explained by the evidence of PW 1 and PW 2. They have deposed that in spite of best efforts, the whereabouts of George Salins was not known to the Plaintiffs/Respondents. The Plaintiffs/Respondents' witnesses have deposed that they inquired also with Mr.D'Cunha who also was equally unaware about the whereabouts of George Salins. The Appellate Court then proceeded to opine that Ankithere at the time of sale to George Salins must have told the Plaintiffs/ Respondents to pay rent to his Advocate Mr.D'Cunha. I may agree with the criticism that this is a surmise drawn by the Appellate Court, but that error does not militate against the ultimate finding reached by the Appellate Court on the point in issue. The Appellate Court has rightly noticed that money orders were sent from time to time by the Plaintiffs/Respondents to Mr.D'Cunha. It is unnecessary to delve upon the question whether the amount was towards payment of rent or for that matter, whether

¶97

: 30 :

¶98

Mr.D'Cunha had authority to receive such rent. The fact remains that the possession of the Plaintiffs/Respondents in the suit property in the capacity as tenant thereof remained unaffected even after George Salins came on the scene. Assuming that the Court were to proceed on the assumption that the Plaintiffs/Respondents did not pay monthly rent and were in arrears for the relevant period, even so, that cannot be the basis to hold that the Plaintiffs/Respondents were not the lawful tenants of the suit property or were not in possession thereof so long as their tenancy rights were not terminated in accordance with law. The Appellate Court has then rightly appreciated the evidence that the whereabouts of George Salins inspite of due diligence could not be traced. It has also taken into account the fact that the Plaintiffs/Respondents made sincere attempt to examine Mr.D'Cunha, Advocate, who would have unraveled the material facts. However, before he could appear as witness after service of summons, due to ill health, he died in hospital. As a result, Mr.D'Cunha could not be examined by the Plaintiffs/Respondents inspite of their best efforts. The Appellate Court has also noticed that the signatures appearing on the acknowledgment matched with the admitted signature of Mr.D'Cunha. In this backdrop, the Appellate Court thought it appropriate to exhibit the money orders as well as the acknowledgment.

¶99

: 31 :

¶100

As aforesaid, nothing much would turn upon the fact that the Plaintiffs/Respondents failed to establish the fact that they continued to pay monthly rent to George Salins (subsequent owner). That cannot be the basis to consider the fact in issue as to whether at the relevant time, they were in possession of the suit property as tenants thereof. At best, it would mean that the Plaintiffs/Respondents were defaulters but that cannot be the basis to assume that they had lost possession or had surrendered their rights in the suit property. The Appellate Court, in my opinion, has rightly inferred that the Defendants/Petitioners have suppressed the material document of list of occupants in the suit property furnished to them at the time of execution of Agreement-Exhibit 25. At the same time, the Defendants/Petitioners made no attempt to examine George Salins from whom they had purchased the suit property. Indeed, the onus is on the Plaintiffs/Respondents to establish the facts pleaded. In the present case, the Plaintiffs/Respondents having established the basic fact that they were inducted in the suit property as tenants and were accepted as tenants by the original owners and that their tenancy rights did not come to end on account of termination in accordance with law, coupled with the fact that no tangible evidence was forthcoming that they had in fact surrendered their rights in the suit property, it will have

¶101

: 32 :

¶102

to be assumed that they were in possession of the suit property in that capacity till the Defendants/Petitioners purchased the same in March 1964. The onus would be on the Defendants/Petitioners to prove the fact that the Plaintiffs/Respondents were dispossessed by following due process of law or had surrendered their rights in the suit property any time before they became the owners or thereafter. The fact that the Plaintiffs/Respondents were dispossessed from the suit property by following due process of law or had lost possession thereof before 1964 or that they had surrendered their rights in the suit property to the erstwhile owner George Salins could have been established by the Defendants/Petitioners by examining George Salins from whom they purchased the property, if they so intended. It is not the case of the Defendants/Petitioners that George Salins or any other person had forcibly dispossessed the Plaintiffs/Respondents before the Defendants/ Petitioners had purchased the property. More so, no documentary, much less, oral evidence has been produced that the Plaintiffs/Respondents on their own surrendered their proprietary rights in the suit property. As a matter of fact, evidence has come on record that the Plaintiffs/Respondents attempted to pay monthly rent even to the Defendants/Petitioners almost for a year. The fact that the Plaintiffs/Respondents did not make any further attempt to offer monthly rent to the Defendants/Petitioners for a long time,

¶103

: 33 :

¶104

by itself, does not lead to the conclusion that the tenancy rights of the Plaintiffs/Respondents have come to an end.

¶105

Be that as it may, the Appellate Court has then appreciated the evidence which has come on record. It has found that the cross-examination of PW 1 and PW 2, if read carefully, on the point of tender of rent to Mr.D'Cunha, it is seen that nowhere in the entire cross-examination of these two witnesses, it was suggested to them that they have never tendered any amount to Mr.D'Cunha towards rent, the postal slips at Exhibit H collectively are false and fabricated or that they are in connection with some other payment to Mr.D'Cunha and not payment of rent of the suit property, the acknowledgment at Exhibit X-7 collectively (without confronting the witnesses with the same) do not pertain to the rent of the suit premises etc. Therefore, the Appellate Court found that the facts so deposed by these witnesses were not at all shaken in the cross-examination. The Appellate Court then proceeded to hold that in fact the entire cross-examination of the two witnesses would show that there was no dispute about the tender of rent under money order slips Exhibit B collectively to Advocate Mr.D'Cunha. The Appellate Court has found that whoever is in possession of the best evidence or whoever can procure the best evidence within their knowledge

¶106

: 34 :

¶107

are obliged to get same, irrespective of the fact that on whom the onus of proof lies. In support of this proposition, the Appellate Court relied on the decision of the Apex Court in the case of Gopal Krishnaji versus Mohd.Haji Latif reported in AIR 1968 SC 1413. The Appellate Court thus concluded that the Defendants/Petitioners failed to produce evidence in their possession. The view so taken is a possible view. It is surely not perverse nor manifestly wrong so as to interfere in exercise of writ jurisdiction.

¶108

In Paragraph 54, the Appellate Court has adverted to the strong circumstance in favour of the Plaintiffs/Respondents which can be discerned from the record about unsuccessful efforts made by the Plaintiffs/Respondents for examination of Mr.D'Cunha, Advocate. They made every attempt to examine him but were unsuccessful. The Appellate Court then dealt with the reasons recorded by the Trial Court that the Plaintiffs/Respondents ought to have examined the wife of Mr.D'Cunha and opined that the same was preposterous. I am in agreement even with that opinion.

¶109

Considering the evidence on record, the Appellate Court

¶110

: 35 :

¶111

proceeded to opine that the Plaintiffs/Respondents continued to be monthly tenants in respect of the suit premises even after the same was sold to George Salins on 18^th September 1958 to the knowledge of said George Salins. Moreover, the fact that there were some sitting tenants/licensees in the suit property is reflected in the Agreement of Sale dated 3rd April 1963 Exhibit 25 executed between George Salins and the Defendants/Petitioners. The Appellate Court noticed that there is nothing on record to indicate that thereafter the Plaintiffs/Respondents surrendered suit property or lost possession on account of legal action taken by the owners by following due process of law. For that reason, the Appellate Court opined that the Plaintiffs/Respondents continued to be in possession of the suit property in the capacity as tenant. The Appellate Court has also placed reliance on the entry in the Books of Accounts maintained by the Plaintiffs/Respondents in the normal course of business. The Appellate Court has opined that the Trial Court did not examine the Books of Account in its proper perspective.

¶112

In Paragraph 59 onwards, the Appellate Court considered the question whether the Plaintiffs/Respondents continued to be the monthly tenants in respect of the suit premises after March 1964 when the Defendants/Petitioners herein came on the scene as landlords on account of

¶113

: 36 :

¶114

Deed of Conveyance dated 19th March 1964 Exhibit 24. The fact that at that time the Plaintiffs/Respondents continued to remain as tenants in the suit property is reinforced by the fact that they tendered rent by cheque to the Plaintiffs/Respondents, entries in the Books of Accounts showing that the amount sent by cheques towards rent of the suit premises by the Plaintiffs/Respondents are credited in their names in the Books of Account, their employees had put up sheds in the suit property for their residence and even after they left the Plaintiffs/Respondents Company, they continued to reside in the sheds even thereafter. The Appellate Court noticed that it is not in dispute that the Defendants/Petitioners came on the scene as landlords of the suit property only in March 1964. The Appellate Court accepted the plea of the Plaintiffs/Respondents that they tendered amount towards monthly rent by cheques to the Defendants/ Petitioners from July 1964 till June 1965 which cheques remained unencashed. In the Plaint, the Plaintiffs/Respondents have referred to the counterfoils of the cheques. Both PW 1 and PW 2 have deposed that Mr.D'Cunha, Advocate informed the Plaintiffs/Respondents that the suit property was sold by George Salins to the Petitioners in March 1964. There is absolutely no cross-examination in this behalf. The Appellate Court has found that there was also no crossexamination on the fact asserted by the Plaintiffs/Respondents and their

¶115

: 37 :

¶116

witnesses that the Plaintiffs/Respondents continued to be the monthly tenants after the property was sold by Ankithere to George Salins as they continued to pay rent of the suit premises to Mr.D'Cunha and that after March 1964, the Plaintiffs/Respondents continued to be monthly tenants in the suit premises. The Appellate Court has found that both the witnesses PW 1 and PW 2 of the Plaintiffs/Respondents have corroborated the fact asserted in the Plaint regarding payment of rent by cheques to the Plaintiffs/Respondents for the period between July 1964 to June 1965 in their examination. The doubt created during the cross-examination, however, were only limited to the witness does not remember the dates, months and years of the cheques which were sent to the original Defendant No.1. In response to which, it is deposed that without referring to the records, he will not be able to give all these details, especially when, he was giving evidence in 1984 in respect of events of 1964. The Appellate Court, therefore, accepted the evidence of PW 1. Insofar as evidence of PW 2 is concerned, the Appellate Court on re appreciation of the same, noticed that the same revealed that he has deposed on the point of sending rent to the original Defendant No.1 by cheques. Whereas, the cross-examination of this witness would give an impression that there is hardly any challenge to the factum of the Plaintiffs/Respondents having sent cheques to the Defendants/

¶117

: 38 :

¶118

Petitioners from July 1964. The Appellate Court has found that in the crossexamination, there was not even a suggestion to the witnesses that they have never sent any cheque to the Defendants/Petitioners at any time or that the entire story of their sending cheques towards payment of rent to original Defendant No.1 from July 1964 to July 1965 was a got up, false and fabricated. It is in this background, the case as pleaded by the Plaintiffs/Respondents has been considered by the Appellate Court. The Appellate Court opined that no prudent person especially a Private Limited Company would suddenly stop tendering rent to the landlord and abandon their claim of tenancy in the suit property which was admeasuring about 2 Acres. This approach of the Appellate Court has been criticised by the Counsel for the Petitioners/Defendants on the argument that the Appellate Court has committed manifest error in appreciating evidence of P.W. 1 and 2, inasmuch as it has erroneously assumed that there is no crossexamination regarding the fact of sending of rent. The learned Counsel had relied on the questions put during the cross-examination, which however, in my view, would not take the matter any further. In the first place, it is not for this Court to re-appreciate the evidence to take a view different from the one taken by the Appellate Court, merely because another view may be possible on the same evidence. The portion of the cross-examination

¶119

: 39 :

¶120

invoked by the Defendants/Petitioners would not militate against the finding of fact recorded by the two Courts below that the Plaintiffs/ Respondents were inducted in the suit property as tenants. Assuming that the arguments of the Defendants/Petitioners were to be accepted, it would end up in inviting this Court to record a finding that the Plaintiffs/ Respondents have failed to establish that they paid amount towards monthly rent to the owners from time to time. Even if that finding were to be discarded, that would not justify in drawing the inference, much less, conclusion that the Plaintiffs/Respondents had ceased to be tenants in the suit property or had surrendered their proprietary rights in the suit property.

¶121

The Appellate Court in its Judgment from Paras 61 till 66 has dealt with the approach of the Trial Court, which had wrongly assumed that the Plaintiffs/Respondents either lost possession or surrendered tenancy in or about 1964. It held that the same was devoid of merits. I am in agreement with the conclusion reached by the Appellate Court that the Trial Court could not have assumed on the factum of continuation of tenancy and possession of the suit property, especially having noticed that the Plaintiffs/Respondents were occupying the suit property in the capacity of the tenant, almost till the Defendants/Petitioners herein purchased the same

¶122

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¶123

from George Salins by Conveyance Deed dated 19th March 1964. The status of tenant could be lost either on account of legal action taken by the landlord by following due process of law or the tenant himself surrendering his right in the suit property. In the present case, the suit property consists of piece of land admeasuring almost 2 acres. Part of the land was encroached by trespassers. To the extent of the said encroachment, the Defendants/ Petitioners have already resorted to remedy before the Court of Law. The said action is not against the Plaintiffs/Respondents or persons claiming through the Plaintiffs/Respondents as such. Insofar as the Plaintiffs/ Respondents are concerned, even if they have failed to offer rent after 1964 to the new landlord/Defendant No.1 therein, that would not take away their status of being tenants in the suit property so long as the tenancy is not lawfully terminated by due process of law and of taking over possession of the suit property from the Plaintiffs/Respondents on the basis of decree passed by a Court of competent jurisdiction. As aforesaid, the onus of proving the fact that the Plaintiffs/Respondents lost possession of the suit property or that they have surrendered tenancy, would be on the Defendants/Petitioners. The Plaintiffs/Respondents cannot be expected to prove a negative fact that they have not lost possession by due process of law or that they have not surrendered the suit property. The Appellate Court

¶124

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¶125

has analysed all these aspects carefully and has analysed the pleadings and evidence on record threadbare to reach at the conclusion that the Plaintiffs/Respondents continued to remain in the suit property as lawful tenants even after the original Defendant No.1 purchased the same by Conveyance Deed on 19^th March 1964.

¶126

The Appellate Court has rightly noted that the fact that the Plaintiffs/Respondents have not paid the amount towards monthly rent to the landlord or that they had stopped using the suit property for which, it was let, cannot be the basis to answer the point in issue. Indeed, I would agree that, that can be a cause for landlord to initiate action against the tenant to get back possession of the suit property but by no standards, can be the basis to assume that the tenant has lost possession of the suit property or that he has surrendered his rights therein.

¶127

According to the Defendants/Petitioners, after the suit property was purchased by Conveyance dated 19^th March 1964, they had done fencing to the suit property and engaged security guards to look after the suit property. The Appellate Court has dealt with even this contention in Paragraph 66 of its Judgment to hold that the evidence was not enough to conclude that the

¶128

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¶129

Plaintiffs/Respondents were never in possession of the suit premises. It found that there was nothing on record to even remotely suggest that the Defendants/Petitioners after purchasing the suit property attempted to disturb the possession of the Plaintiffs/Respondents in the suit premises either by throwing out the employees of the Plaintiffs/Respondents from the sheds in the suit premises or by entering upon the suit premises by doing certain activities thereon such as construction, etc. Till such time, the Plaintiffs/Respondents would continue to enjoy their right of tenancy in the suit premises. In other words, the mere fact of fencing the property or having engaged security guards to look after the property would not result in dispossessing the Plaintiffs/Respondents from the suit property. As a matter of fact, the evidence in support of fencing is of Defendants/ Petitioners’ witness DW 1. In his examination-in-chief, in Paragraph 88 at page 144 of the paper book, he has deposed that George Salins was in possession of the suit property before it was purchased by the Defendants/Petitioners. After purchasing the property, the same was covered by the Defendants/Petitioners with fencing. At the time of purchasing the property, no work of dyeing or processing was going on there. No portion of the property was used as Dhobi Ghat at the time when the same was purchased. In the cross-examination, at page 149 paragraph 74, this witness has stated that he had visited the site

¶130

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¶131

before the property was purchased but says that he does not remember how many structures were found on the property at that time. He had made first visit to the site sometime in 1963. In the cross-examination, in paragraph 86 at page 157 of the paper-book, it was suggested to the witness that property was never covered after purchasing it. He claimed that some amount was spent for covering the property. It was by barbed wire fencing. He further stated that his Manager got the fencing done. However, the said Manager has not been examined. Moreover, he did not remember the amount spent for fencing the property. He has stated that expenses should have been entered in some Books of Accounts but was not in a position to depose whether such entries were made and those Books of Accounts are still available with the Defendant Company. He admits that barbed wire fencing was not in existence when he deposed before the Court. Suffice it to observe that the fact that the suit property after purchasing the same, was completely fenced and was inaccessible to any other person and that security guards were deployed who prevented entry of any other person, that evidence is not on record. The fact that the Defendants/Petitioners in fact incurred expenses towards those heads, even that evidence is not forthcoming. As aforesaid, assuming that fencing of the property was done even then it does not take

¶132

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¶133

the matter any further unless it was further shown that entry was restricted to the Defendants/Petitioners and their representatives only to the exclusion

¶134

of others and in particular the Plaintiffs and their representatives. Therefore, the evidence on record does not establish dispossession of the Plaintiffs/ Respondents or for that matter, the rights of the Plaintiffs/Respondents in the suit property coming to an end. The Plaintiffs/Respondents continued to be the lawful tenants in respect of the suit property even after the same was purchased by the original Defendant No.1 under the registered Conveyance Deed dated 19^th March 1964. This conclusion reached by the Appellate Court in my opinion, is unexceptionable in the fact situation of the present case. That opinion is based on the pleadings and evidence on record and cannot be said to be manifestly wrong, much less, perverse.

¶135

Counsel for the Defendants/Petitioners, however, submitted

¶136

that the observation of the Appellate Court that a list of persons who were in occupation when George Salins purchased the property vide Agreement Exhibit 26 and the said list was given to the Defendants/Petitioners at the time when they executed Agreement(Ex.25), is incorrect. The argument deserves to be stated to be rejected. The Appellate Court has rightly

¶137

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¶138

adverted to the recital in the document in question. The relevant extract whereof has been reproduced in Para 47 of the Judgment. It clearly mentions about the rights which were transferred in favour of the purchaser, which included right to collect arrears of rent from the tenants or licensees. The fact that such provision is made in the Agreement Exhibit 26 presupposes that when the property was purchased by George Salins under Conveyance, there were sitting tenants or licensees in the suit property. Indeed, the document by itself does not disclose the name of the Plaintiffs/Respondents as one of the tenants. To that extent, the Defendants/Petitioners may be right that the Appellate Court could not have assumed that the document refers to the existence of tenancy of Plaintiffs/Respondents in the suit property. However, that is not the only circumstance on the basis of which both the Courts below have proceeded to recognise the right of Plaintiffs/Respondents in the suit property as tenants up to 1958 when the same was purchased by George Salins vide Conveyance dated 18^th September 1958. Counsel for the Defendants/ Petitioners also criticised the approach of the Appellate Court in appreciating the evidence of PW 1 and PW 2 and assuming certain facts such as Ankithere must have instructed the Plaintiffs/Respondents to make payment to Advocate Mr.D’Cunha towards monthly rent of the suit

¶139

: 46 :

¶140

property. Once again, such error cannot be the basis to overturn the otherwise well considered Judgment of the Appellate Court. The fact that the Plaintiffs/Respondents remitted amount on regular basis by money order to Advocate Mr.D’Cunha is established from the evidence on record. Even if the finding recorded by the Appellate Court that Ankithere must have instructed Plaintiffs/Respondents to make payment to Advocate Mr.D’Cunha was to be ignored, that would not belie the established position that Plaintiffs/Respondents did remit amount to Advocate Mr.D’Cunha. As is found earlier, whether the amount so remitted was towards monthly rent or whether Advocate Mr.D’Cunha had authority to collect such rent or not would make no difference to answer the point in issue. The fact remains that the Plaintiffs/Respondents have been held to be the lawful tenants and were in possession of the suit property until George Salins was the owner and transferred it to the Defendants/Petitioners. Suffice it to observe that the concurrent view taken by the two Courts below that the Plaintiffs/Respondents were lawful tenants in the suit property right up to the same was purchased by George Salins under Conveyance dated 18^th September 1958 is unexceptionable. The argument of the Defendants/ Petitioners that the opinion recorded by the Appellate Court by drawing adverse inference against the Defendants/Petitioners is perverse, does not

¶141

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¶142

commend to me. No fault can be found with the Appellate Court for having noted that the list of occupants/licensees was obviously furnished to the purchaser when the Agreement was executed in favour of original Defendant No.1. The said list was not forthcoming nor the Defendants/ Petitioners chose to examine George Salins whose evidence would have thrown light on the persons who were in occupation as tenants/licensees. That was the best evidence to answer the point in issue and ought to have been presented by the Defendants/Petitioners . The argument now advanced that the Petitioners could not be blamed for not producing Salins as witness clearly overlooks that no case has been made out by the Defenfants/ Petitioners before the lower Court that any effort or due diligence was made by the Defendants/Petitioners for producing George Salins as their witness. The Plaintiffs/Respondents on the other hand have deposed on oath that they made their best efforts to ascertain the whereabouts of George Salins. Even inquiries were made with Advocate Mr.D’Cunha who also expressed his inability to disclose the same. As a matter of fact, the Plaintiffs/Respondents wanted to examine Advocate Mr.D’Cunha and had taken steps in that direction but for the unfortunate death of the said Advocate before he could appear as witness. In my opinion, overall approach of the Appellate Court cannot be termed as perverse or manifestly

¶143

: 48 :

¶144

wrong in the fact situation of the present case.

¶145

The Counsel for the Defendants/Petitioners was at pains to point out that the Court cannot ignore the documentary evidence produced on record in the shape of Exhibit 24 which is a registered document and would show that the Defendants/Petitioners were put in exclusive possession of the suit property. According to her, the same should prevail over the oral evidence of Plaintiffs/Respondents on the factum of possession. This argument clearly overlooks that the Plaintiffs/Respondents are not party to the said document. It is between the erstwhile owner and the Defendants/Petitioners. The contents thereof would bind the parties to the document and the presumption cannot be against a third party. In this case, the third party is a tenant in the suit property. The contents of the said document will have to be examined in the context of the tenancy rights of the Plaintiffs/ Respondents. As is found earlier, there is nothing to show that the tenancy rights have been terminated by due process of law or that the Plaintiffs/Respondents have in fact surrendered the same. Accordingly, this argument does not take the matter any further.

¶146

The Defendants/Petitioners further submitted that the documentary

¶147

: 49 :

¶148

evidence produced by the Defendants/Petitioners discloses that the Defendants/Petitioners were put in possession of the suit property. The fact that the workers/employees of the Plaintiffs/Respondents were permitted to erect structures on the suit property and they continued to remain in possession of their sheds even after they ceased to be in employment of the Plaintiffs/Respondents; these facts have not been established by the Plaintiffs/Respondents, which could have been done by examining the concerned employees/workers. Indeed, it was possible for the Plaintiffs/ Respondents to bring that evidence on record. However, the Plaintiffs/ Respondents having failed to do so, that cannot be the basis to draw inference that the Plaintiffs/Respondents were in fact, not in possession of the suit property. The argument of the Defendants/Petitioners that the Plaintiffs/Respondents ought to have established the fact that the workers/employees whom they have permitted to erect structure were not the same against whom suits have been filed by the Defendants/Petitioners, to say the least is untenable. In the first place, the Plaintiffs/Respondents have asserted that the suits filed by the Defendants/Petitioners were neither against the Plaintiffs/Respondents nor the persons claiming through them. The Defendants/Petitioners who had filed those suits, besides denying, ought to have shown from the evidence that the position was to the contrary.

¶149

: 50 :

¶150

Suffice it to observe that these are all issues inviting the Court to reappreciate the evidence to take a view different than the one taken by the Appellate Court.

¶151

As is noted at the outset, the scope of interference in writ jurisdiction is not to re-appreciate the evidence on record and take a different view merely because another view of the same evidence is possible. As a matter of fact, the finding of fact recorded by the final fact finding Court would bind this Court unless the same is shown to be perverse or manifestly wrong or is such that it would cause serious miscarriage of justice. The grievance brought before this Court, in my view, is more in the nature of finding some error here and there in the reasoning of the Appellate Court. In my opinion, the ultimate conclusion reached by the Appellate Court on taking overall view of the pleadings and evidence on record that the Plaintiffs/Respondents were the lawful tenants of the suit property and continued to be in possession thereof, is unexceptionable. In the circumstances, the principal points that arise for consideration will have to be answered in favour of the Plaintiffs/Respondents as has been rightly answered by the Appellate Court.

¶152

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¶153

That takes me to the question of limitation. The Trial Court answered the said issue in favour of the Defendants/Petitioners and against the Plaintiffs/Respondents. The Trial Court found that a Suit for declaration of the present kind would attract Article 58 of the Limitation Act. Such declaration ought to have been sought immediately after the Defendants/Petitioners declined to accept the cheques towards monthly rent after purchasing the suit property in or around 1964. Moreover, the Plaintiffs/Respondents stopped using the suit property from 1964. The Trial Court essentially proceeded on the assumption that on and from 1964, the Plaintiffs/Respondents were not in possession of the suit property. It is on that premiss the Trial Court proceeded to hold that the cause of action had arisen in 1964 and the Suit ought to have been filed soon thereafter. The Trial Court held that the Suit having been filed in 1981, therefore, was barred by limitation. The Appellate Court in the first place, reversed the finding of the Trial Court on the factum of Plaintiffs/Respondents having lost possession of the suit property in or around 1964. The Appellate Court on the other hand found that the Plaintiffs/Respondents remained in possession of the suit property even after the same was purchased by the Defendants/Petitioners in 1964. The Appellate Court further found that the question of resorting to Suit for declaration would arise only when the right

¶154

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¶155

of the Plaintiffs/Respondents was infringed or at least a clear or unequivocal threat to infringe that right is expressed by the Defendants/Petitioners in respect of the suit property. On the basis of the evidence on record, the conclusion reached by the Appellate Court is that at no point of time, infringement of right of the Plaintiffs/Respondents was caused in the present case. That occasion arose only when the Defendants/Petitioners intended to develop the property in the year 1981 and submitted plans to the Corporation for permission in that behalf. On getting that information, the Plaintiffs/Respondents immediately rushed to the Court for declaration and therefore such an action cannot be said to be barred by limitation.

¶156

Counsel appearing for the Defendants/Petitioners had argued that the suit property was purchased by the Defendants/Petitioners to the knowledge of the Plaintiffs/Respondents in the year 1964. Soon thereafter, the Defendants/Petitioners put up barbed wire fencing around the property and also deployed security service to protect the property. The Plaintiffs/Respondents did not record any objection in that behalf. Whereas, the Plaintiffs/Respondents made no attempt to pay rent to the Defendants/Petitioners since the date the suit property was purchased by them. Moreover, the claim of the Plaintiffs/Respondents that amount

¶157

: 53 :

¶158

towards monthly rent was remitted by cheque which was received back undelivered and unencashed, that fact has not been established in evidence. Besides, no attempt was made by the Plaintiffs/Respondents to meet the Defendants/Petitioners and offer the monthly rent. At the same time, the Plaintiffs/Respondents were not present on the site and were not doing any activity on the site after 1964 and as such had abandon the site. These pleas have already been addressed in the earlier part of this Judgment. It has been found that the fact that the property was completely fenced and that security guards were deployed, who in turn, did not allow any person other than the Defendants/Petitioners or their representatives to enter the property, these facts have not been established from the record. Thus understood, the possession of the Plaintiffs/Respondents in the suit property remained unaffected even after the purchase of the property by the Defendants/ Petitioners in the year 1964. The fact that no rent has in fact been paid to the Defendants/Petitioners or that the property is not being used for the purpose for which it has been let out, cannot be the basis to answer the issue of limitation. That may be ground to proceed against the tenant for eviction. The issue of limitation will have to be considered in the context of when the cause of action to sue had arisen to the Plaintiffs/Respondents. That has arisen on account of the threat of infringement of rights of the

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: 54 :

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Plaintiffs/Respondents which was evident from the proposal submitted by the Defendants/Petitionerss to the Corporation for development of the suit property. It is only then the right to sue has accrued to the Plaintiffs/Respondents for relief of declaration and injunction. Insofar as the former landlords were concerned, they had accepted the Plaintiffs/Respondents as tenant in respect of the suit property. It is only the Defendants/Petitioners who are subsequent purchasers and came on the scene from March 1964, they have challenged the rights of Plaintiffs/Respondents as tenants in the suit property for the first time before the Court in the present proceeding. Further, the Defendants/ Petitioners. disregarding the rights of the Plaintiffs/Respondents wanted to develop the property, which would defeat the rights of the Plaintiffs/ Respondents. Thus, the Suit for declaration and injunction to protect the rights of the Plaintiffs/Respondents became necessary and the cause of action therefor arose in 1981. In view of the conclusion reached in the foregoing discussion, it necessarily follows that the Suit as presented in the fact situation of the present case was within limitation. The Appellate Court, therefore, has rightly answered the issue of limitation in favour of the Plaintiffs/Respondents.

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: 55 :

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The Appellate Court while allowing the Appeal preferred by the Plaintiffs/Respondents was pleased to not only set-aside the Judgment and Decree passed by the Trial Court but further declared that the Plaintiffs/Respondents are the lawful monthly tenants of the Defendants/ Petitioners in respect of the suit property and therefore restrained the Defendants/Petitioners and their agents and servants from permanently entering into or upon the suit property or any part thereof and/or from erecting any building or structures thereon or any part thereof and/or otherwise interfering with or interrupting the Plaintiffs/Respondents’ possession and enjoyment of the suit premises without due process of law. Insofar as the relief of declaration is concerned, upon conclusion reached by the Appellate Court which has been affirmed by this Court, the same is inevitable. Once the Plaintiffs/Respondents succeed in getting declaration that they are the lawful monthly tenants and upon finding that they are in possession of the suit property, the relief for injunction as claimed would necessarily follow. In that, the rights of the tenants in respect of the suit property cannot be interfered with and the possession and enjoyment of the suit property cannot be disrupted without due process of law. Accordingly, no interference whatsoever is warranted even in respect of reliefs granted by the Appellate Court.

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: 56 :

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Hence, this Petition fails. The same is dismissed with no order as to

¶165

costs.

¶166

A.M.KHANWILKAR, J.

M/S. Vimal Corporation and Others v. M/S. Shree Shanti Textiles Mills Pvt.Ltd.

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M/S. Vimal Corporation and Others v. M/S. Shree Shanti Textiles Mills Pvt.Ltd.

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