Final Order 1

Order Details: Copy of Judgment
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Presented on
Registered on
Decided on
:
:
:
06.01.2022
22.02.2022
01.10.2022
Period required for the disposal
00 Years 09 Months 09 Days
IN THE COURT OF SMALL CAUSES AT MUMBAI
(Bandra Branch)
[CNR No.:- MHSCA3-000242-2022]
R-Appeal No. 44 of 2022
In
R.A.D. Suit No. 564 of 2015
1. Shri Bhavanbhai Dayabhai Vala (Since Deceased)
Age about 74 Years, Occup: Business,
1.1. Smt. Majulaben Bhavanbhai Vala
Aged about 69 Years, Occupation: Housewife,
Hindu Adult, Indian Inhabitant of Mumbai,
Residing at Room No. 12, Shah Bhuvan,
Ashra Colony, Kasturba Cross Road,
Near Abhyuday Bank, Chinchpada Road,
1st Carter Road, Borivali (Est),
Mumbai 400 066.
1.2 Shri Pravin Bhavanbhai Vala
Aged about 51 Years, Occupation Labour
Hindu Adult, Indian Inhabitant of Mumbai,
Residing at Room No. 4, Shah Bhuvan,
Kasturba Cross Road, Near Abhyuday Bank,
Chinchpada, Borivali (East),
Mumbai – 400 066
Email ID: pravinvala@gmail.com
Mob: 9967904371
1.3 Shri Paresh Bhavanbhai Vala
Aged about 47 Years, Occupation Labour
Hindu Adult, Indian Inhabitant of Mumbai,
Residing at Room No. 12, Shah Bhuvan,
Kasturba Cross Road, Near Abhyuday Bank,
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Chinchpada, Borivali (East),
Mumbai 400 066.
1.4. Shri Kiran Bhavanbhai Vala
Aged about 50 Years, Occupation Labour
Hindu Adult, Indian Inhabitant of Mumbai,
Residing at Room No. 12, Shah Bhuvan,
Kasturba Cross Road, Near Abhyuday Bank,
Chinchpada, Borivali (East),
Mumbai 400 066.
1.5. Shri Shanti Bhavanbhai Vala
Aged about 46 Years, Occupation Labour
Hindu Adult, Indian Inhabitant of Mumbai,
Residing at Room No. 12, Shah Bhuvan,
Kasturba Cross Road, Near Abhyuday Bank,
Chinchpada, Borivali (East), ...Appellants
Mumbai 400 066. (Orig. Plaintiffs)
Versus
1. Smt. Tarla Talakshi Shah,
Aged about 65 Years, Occupation-Business
2. Shri Haresh Talakshi Shah
Aged About 44 Years, Occupation-Business,
Both Hindu, Adults, Indian Inhabitant of
Mumbai, Residing at A-201, Ratnadeep,
1st Carter Road, Borivali (East),
Mumbai – 400 066.
3. Mrs. Dhiral Vinit Gogari,
Aged about 30 Years, Occupation Service,
Hindu Adult, Indian Inhabitant of Mumbai,
Residing at Room No.6, Abhiram, Soniwadi,
Borivali (West), Mumbai – 400 092.
4. Shri Damjibhai Dayabhai Wala,
Aged about 70 Years, Occupation Service,
Hindu Adult, Indian Inhabitant, residing at
Post Village -Konjali, Taluka-Mahuva, ...Respondents
District-Bhavnagar, Gujarat-354290. (Orig. Defendants)
1. Mr. M. R. Bhargav, Learned Advocate for Appellants
2. Mr. N. S. Tungare, Learned Advocate for Respondents.
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Coram: Mohammad Nasir M. Saleem,
Addl. Chief Judge &
Kashinath B. Kamgauda, Judge
Court Room No. 31
Date: 01st October, 2022
:: JUDGMENT ::
(Per Kashinath B. Kamgauda, Judge)
This appeal is directed against the judgment and decree
dated 16th December, 2021, passed by Learned Trial Court Room No.
35, in R.A.D. Suit No. 564 of 2015, whereby, the suit for declaration of
tenancy rights and perpetual injunction came to be dismissed with
costs.
Parties of this appeal are hereinafter referred to their
respective nomenclature before the Learned Trial Court.
Description of the suit premises:-
2. Room No. 12, situated at Shah Bhuvan, Ashra Colony,
Chinchpada Road, 1st Carter Road, Borivali East, Mumbai – 400 066
ad-measuring about 220 sq.ft. Carpet and lying and situated at Village-
Kanhieri, Taluka-Borivali, Mumbai is the '
suit premises'.
3. Undisputedly, defendant Nos. 1 to 3 are the landlords of
the suit premises and defendant No. 4 is the original tenant.
4. It is the case of the plaintiff that he was allowed to use and
occupy the suit premises by his brother/defendant No. 4. On this basis,
he claims his exclusive possession and control over the suit premises as
a tenant thereof. He further submits that his brother executed an
irrevocably Power of Attorney dated 09th June, 2008 and thereby,
surrendered the tenancy rights of the suit premises in his favour. He
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further submits that he has been residing in the suit premises and
paying rent regularly to defendant Nos. 1 to 3. In order to show his
occupation over the suit premises, he relied on the documents viz.
Driving License, Aadhar Card etc. According to him, defendant Nos. 1
to 3 in collusion with defendant No. 4 are trying to dispossess him from
the suit premises without following due process of law. Hence, he filed
this suit.
5. Defendant Nos. 1 to 3 contested the suit vide written
statement Exhibit 09. They submitted that defendant No. 4 is not
residing in the suit premises. However, they admitted that they are
issuing rent receipt in his name. According to them, plaintiff is not
entitled to claim any kind of relief.
6. Defendant No. 4 contested the suit inter-alia contending
that he has never surrendered the tenancy rights of the suit premises in
favour of his brother/plaintiff. He further contended that he hails from
Gujarat but having his control and possession over the suit premises.
He has been frequently visiting and residing at the suit premises.
Plaintiff being his brother was allowed to reside in the suit premises in
the year 1976. He resided in the suit premises as one of the family
member. He further clarifies that the plaintiff has been residing at Mira
Road, District : Thane and he is not concerned whatsoever with the suit
premises. Thus, dismissal of the suit was claimed.
7. On merits, after considering entire evidence, Learned Trial
Judge was pleased to dismiss the suit holding that plaintiff has failed to
establish his tenancy rights in the suit premises.
8. Heard both the sides. Perused the written notes of
Arguments.
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9. Following Points arise for our determination and finding
thereon for the reasons given below are as under:-
POINTS FINDINGS
1 Whether plaintiff proves that he has acquired
tenancy rights of the suit premises?
No
2 Does plaintiff entitled to the relief of declaration
and injunction as prayed for?
No
3 Whether impugned judgment and decree needs
interference at the hands of this Appellate Court?
No
4 What order and decree? Appeal is
dismissed
:: R E A S O N S ::
As to Issue No. 1 :-
10. This point corresponds to Issue No. 1 of the Suit which has
been answered against plaintiff. The findings recorded by the Learned
Trial Judge with the said Issue has been challenged in this Appeal.
11. First of all, the claim of plaintiff is that the Tenancy
Agreement dated 01st September, 1969 (Exhibit 28) was executed by
original landlord and thereby he became the tenant of the suit
premises. This Agreement is not in dispute. It is admitted by the
parties. After going through said Agreement, it is quite clear that it was
executed between the original landlord and defendant No. 4. The
Agreement itself shows that defendant No. 4 was inducted in the suit
premises as a tenant thereof. This Agreement nowhere speaks about
the tenancy right of the plaintiff. Therefore, said Agreement cannot
come to help the plaintiff for establishing his tenancy rights over the
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suit premises.
12. It is second contention of the plaintiff that he has been
paying rent of the suit premises to the landlord. He has relied upon the
rent receipts Exhibit 29 (1 to 11 Colly.). These rent receipts are not in
the name of the plaintiff. The landlords did not issue such rent receipts
in his name but it was issued in the name of his brother. These rent
receipts do not show plaintiff as the tenant of the suit premises. It
cannot be inferred from those rent receipts that rent of the suit
premises was paid by plaintiff. Since 01st January, 1975, rent receipts
stands in the name of defendant No. 4 till 01st February, 2018.
13. It is third contention of plaintiff that his brother/defendant
No. 4 has surrendered the tenancy rights of the suit premises in his
favour by executing Power of Attorney dated 09th June, 2008. However,
said Power of Attorney has not been proved. There is no documentary
evidence to substantiate plaintiff's claim with regard to surrender of
tenancy in his favour. Importantly, plaintiff did not enter into the
witness box. He has not supported his contentions on oath. He
examined his son Paresh as PW1 who admitted about non-production
of said Power of Attorney on record. He further admitted that his father
has not been residing in the suit premises since last 7-8 years. He
further clarified that he has no knowledge as to whether his father was
inducted as a tenant of the suit premises or not and how long his father
has been residing in the suit premises. All these aspects have been
properly considered by Learned Trial Judge while assessing the entire
evidence.
14. Defendant Nos. 1 to 3 are landlord. Defendant No. 4 is only
contesting the suit as a tenant. Suit appears to have been in collusion
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between plaintiff and defendant Nos. 1 to 3 as to evict the defendant
No. 4 from the suit premises. Landlord is supporting the plaintiff by
way of written statement. However, the question would arose why
landlord has not transferred rent receipts in favour of plaintiff. Learned
Trial Judge has rightly observed that there is no rent receipts in favour
of plaintiff. There is no documents in favour of plaintiff to show that he
has requested the landlords to transfer the rent receipts in his name.
Nothing has been explained by plaintiff what had prevented him from
getting the rent receipts transferred in his name if he has been living in
the suit premises as a tenant and paying the rent thereof. Since there is
no positive evidence about the plaintiff's possession and occupation
over the suit premises, Learned Trial Judge has rightly drawn adverse
inference against him by holding that he has failed to prove the transfer
of tenancy rights of the suit premises in his favour. Whatever evidence
tendered by plaintiff is totally inadequate and insufficient to hold him
as a tenant of the suit premises. In the result, this Point No. 1 is
answered in negative.
As to Point No. 2:-
15. Since plaintiff has failed entirely, Learned Trial Judge has
rightly refused the relief of declaration and injunction as sought.
Defendant relied upon following judgments.
(1) Janki Vashdeo Bhojwani & Anr. V/s. Indusind Bank
Ltd & Ors. [2005(1) Mh.L.J. 1170], wherein, the Hon'ble Supreme
Court held that
Power of Attorney Holder cannot depose for the
principal for the acts done by the principal and not by him.'
Plaintiff claiming right, interest in the suit premises so he
has personal knowledge about his tenancy rights. Power of Attorney
holder is son of plaintiff. He admitted in his cross examination that he
has no personal knowledge about the tenancy rights of his father.
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Therefore, evidence of Power of Attorney cannot be treated as evidence
of principal i.e. plaintiff.
(2) Hindoostan SPG. And WVG. Mills Ltd. Mumbai V/s.
Hindustan Crown Mills Siddhivinayak Kamgar Karmachari
Sangharsha Sanghatana & Ors. [2007(5) MH.L.J. 801] , wherein,
the Hon'ble Bombay High Court held that '
whoever desires any Court
to give judgments as to any legal right or liability must prove those
facts exists.'
16. Plaintiff cited a judgment of the Hon'ble Apex Court in the
matter of M/s. Park Street Properties Pvt. Ltd. V/s. Dipak Kumar
Singh & Anr. (In Civil Appeal No. 8361 of 2016 dated 29 th August,
2016), wherein, it is held that '
Section 106 of Transfer of Property Act,
1882 lays down the rule of construction which is to be applied when
there is no period agreed upon between the parties and in such cases
duration has to be determined by the reference to the object for the
purpose for which tenancy is created.'
The ratio is not applicable for the reasons that facts are
different. Moreover, plaintiff is claiming tenancy rights in suit premises.
There is no such fact of tenancy creation.
Plaintiff failed to prove and show his right, interest in suit
premises. The ratio is applicable to set of fact. The trial Court rightly
denied the tenancy rights of plaintiff. In the result, this Point No. 2 is
answered in negative.
As to Point No. 3 & 4 :-
17. No case has been made out to interfere with the impugned
judgment and decree, therefore, this Point No. 3 is answered in
negative. In view of above discussion, appeal deserves to be dismissed.
In consequences, in answer to Point No. 4, following order is passed.
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:: O R D E R ::
1. The Appeal is dismissed.
2. The Judgment and decree dated 16th December,
2021, passed by Learned Trial Court Room No. 35,
in R.A.D. Suit No. 564 of 2015 is hereby confirmed.
3. The parties to the appeal/suit are hereby informed
that the parties shall take back the original
documents as per the procedure laid down in
Paragraph No. 524 to 528 of the Bombay High
Court Civil Manual, failing which, those shall be
destroyed on expiry of time frame as to destruction
of documents as laid down in Paragraph No. 524 of
the Bombay High Court Civil Manual.
4. Parties to bear their own costs.
5. Decree be drawn up accordingly.
I Agree,
(Mohammad Nasir M. Saleem) (Kashinath B. Kamgauda)
Addl. Chief Judge Judge,
C.R. No. 31 C.R. No. 31
01st October, 2022 01st October, 2022
Order dictated on : 01.10.2022
Order Typed on : 01.10.2022
Order checked & signed on : 03.10.2022
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